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R.    H.    F.    VARI<-L 

ATTORNEY  AT  LAW 

LOS  AHOSLSS.      T 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


A    TREATISE 


OK    THE    LAW    OF 


Commercial  Paper 


O  >N  fAINING 


A    FULL   STATEMENT    OF    EXISTING    AMERICAN    AND   FOREIGN   STA'IUTES, 

TOGETHER    WITH    THE    TEXT    OF    THE    COMMERCIAL    CODES 

OF   GREAT   BRITAIN,    FRANCE,    GERMANY   AND    SPAIN. 


JOSEPH  F.  RANDOLPH, 

OF   THE   NEW    IERSEY   BAR. 


IN  THREE   VOLUMES,  WITH   APPENDIX. 
VOL.    I. 


JERSEY   CITY,  N.  J.  : 

FREDERICK    D.    LINN    &    CO. 

Sf.ifo  publisher?  unb   •Gochscllcrs. 
' 1888. 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1886,  by 

Joseph  F.  Randolph, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


T 


PRESS   OF 
FERRIS    BROTHERS. 


TO   THE 
OF   MY   FATHER, 

JOSEPH    F.   RANDOLPH, 

OF  NEW  JERSEY, 

WHO   LOVED  THE  LAW  AS   A    GREAT    BILL  OF  RIGHTS,   AND    DEVOTED    HIS   LONG  AMD 

USEFUL  LIFE  TO   IT  AS  THE  BEST   DEFENSE  OF  MEN'S   RIGHTS 

AND  AVENGER   OF  THEIR  WRONGS, 

THIS    BOOK    IS    OFFERED, 

IN   GRATEFUL    MEMORY  OF 

THE    PRECEPTS  AND   EXAMPLE,   BY  WHICH   HE  EVER    ENCOURAGED  THAT 

EXACT  JUSTICE,  THAT   DILIGENCE,  THAT   REASONABLE 

CHARITY,   WHICH   MAKE  AND  ADORN 

THE    LAW    OF    COMMERCIAL    PAPER. 


!>6V694 


PREFACE. 


Commercial  paper,  as  an  instrument  of  exchange,  has  no  ancient 
law.  Its  origin,  although  obscure,  is  not  traceable  into  a  remote  past, 
and  if  not  born,  it  has  at  least  grown  up,  with  the  cities  and  commerce 
of  modern  times.  Throughout  Europe,  and  within  the  present  century, 
the  rules  that  govern  bills  of  exchange  have  taken  the  form  of  codes. 
By  the  Code  Napoleon,  the  Spanish  Code  of  Commerce,  the  German 
Exchange  Law  and  the  more  recent  English  Bills  of  Exchange  Act, 
and  their  various  derivatives,  the  transactions  of  nine-tenths  of  the 
commercial  world  are  now  governed. 

In  a  few  of  the  United  States  this  important  branch  of  the  law 
has  been  codified;  and  since  the  adoption  of  the  English  Bills  of 
Exchange  Act  in  1882,  effort  has  been  made  to  procure  the  enactment 
of  a  similar  law  by  the  Congress  of  the  United  States.  This  has  been 
met  at  the  outset  by  grave  questions  as  to  the  constitutional  power  of 
Congress  in  the  matter.  In  Canada,  the  power  to  legislate  on  this 
subject  is  now  happily  exclusively  reserved  to  the  Parliament  of  the 
Dominion  by  the  imperial  Act  of  Parliament,  by  which  it  was  con- 
stituted. 

It  has  been  well  said  by  the  learned  author  of  the  recent  English 
statute,  that  the  province  of  a  code  is  to  state  with  authority,  in  brief, 
precise  and  orderly  fashion,  the  existing  law ;  not  to  invent  new  prin- 
ciples or  reform  old  ones.  Following  his  own  rule,  the  first  step  taken 
by  Mr.  Chalmers  in  his  great  work  was  to  read  all  the  English  cases 

(some  2,500),  and  make  a  digest  of  the  principles  of  law  established 

(v) 


Vi  PREFACE. 

by  them  and  modified  by  a  score  of  English  statutes.  The  American- 
who  would  render  a  like  service  to  his  brethren  of  the  American  Barr 
with  due  respect  to  the  courts  and  legislation  of  all  the  States  and  to 
the  necessities  of  the  bar  of  the  whole  country,  must  give  years  to  the 
work  where  his  English  example  gave  months;  must  read  thousands 
of  easts,  in  addition  to  the  hundreds  that  the  Euglish  reports  contain, 
and  examine  hundreds  of  statutes,  in  addition  to  the  score  of  British 
Acts. 

In  the  meantime,  while  our  overworked  profession  waits  for  a  brief 
and  precise  statement  of  simple  and  almost  universal  laws — while 
Cicero  and  the  later  prophets  fail,  and  it  is  still  "alia  lex  Romce,  alia 
Athenis" — and  while  American  legislatures  give  us  a  yearly  supple- 
ment of  a  dozen  laws,  and  our  courts  add  five  hundred  varying  deci- 
sions, on  the  old  and  finished  subject  of  commercial  paper,  a  new 
compilation  and  statement  of  the  law,  as  it  now  is  and  as  it  has  been 
since  we  were  a  people,  may  be  welcomed  as  a  service  to  the  Bar.  As 
such  this  work  is  offered  to  the  profession,  in  the  hope  that  the  toil 
of  one  may  lighten  the  labors  of  many,  and  that  the  arrangement  and 
statement  of  the  law,  in  its  diversities  as  well  as  in  its  unity,  may  be 
some  contribution  toward  the  noble  work  of  rendering  at  least  one 
modern  branch  of  law  more  simple  and  more  universal,  and  making 
a  possibility  of  that  bold  presumption  that  all  men  know  the  law. 
In  this  hope  the  author  has  ransacked  the  entire  body  of  reported 
American  and  English  cases  and  of  modern  text-books  upon  this 
subject,  as  well  as  the  whole  mass  of  American,  English  and  Foreign 
statute  law,  verifying,  correcting  and  rejecting  citations,  and  aiming 
throughout  at  a  correct  and  concise  statement  of  the  points  decided 
and  enacted,  without  opinion  or  comment  of  his  own. 

For  the  sake  of  brevity,  leading  text-books  are  referred  to  by  the 
author's  name  only,  the  citation  being  invariably  that  of  the  American 
paging  or  paragraph  (if  so  designated)  of  the  last  American  edition, 


PREFACE.  Vll 

L  e.,  the  seventh  American  edition  of  Byles  on  Bills,  the  thirteenth  of 
Chitty  on  Bills,  the  third  of  Daniel  on  Negotiable  Instruments,  the 
third  of  Edwards  on  Bills,  the  second  of  Parsons  on  Bills  and  Notes, 
the  fourth  of  Story  on  Bills  and  the  seventh  of  Story  on  Promissory 
Notes.  For  information  as  to  foreigu  statutes  the  author  is  indebted 
•chiefly  to  the  careful  and  excellent  compilation  of  Wechselgesetze, 
prepared  and  published  in  Germany  by  Justizrath  von  Borchardt. 

JOS.  F.  RANDOLPH. 

Jersey  City,  N.  J. 


*  -  •, 


CONTENTS. 


CHAPTER  I. 

GENERAL   PRINCIPLES   AND   DEFINITIONS. 

CHAPTER  II. 

WHAT   LAW   GOVERNS. 

Section 

I.  General  Principles, 20 

II.  Speoial  Applications, 33 

CHAPTER  III. 

FORMAL   REQUISITES. 

I.  Writing  and  Signature, 60 

II.  Sealed  Instruments, 70 

III.  Date, 75 

CHAPTER  IV. 

FORM — THE   CONTRACT   FOR   PAYMENT. 

I.  Its  Positive  Character, 85 

II.  Its  Unconditional  Character, 92 

III.  Its  Limited  Character 96 

IV.  Its  Certainty, 

A.  Certainty  as  to  Amount, 104 

B.  Certainty  as  to  Time  of  Payment,      ....         109 

C.  Certainty  as  to  Place  of  Payment,  ....     121 

CHAPTER  V. 

FORM — THE   PARTIES  DESIGNATED. 

I.  The  Maker  or  Drawer, 129 

II.  The  Payee 150 

III.  The  Drawee, 171 

CHAPTER  VI. 

FORM — WORDS   RELATING   TO  TRANSFER,   CONSIDERATION,  AC. 

I.  Negotiable  Words, 173 

II.  Expression  of  Consideration, 178 

III.  Blanks 181 

IV.  Memoranda  and  Contemporaneous  Agreements,        .         .        .  190 
V.  Additional  Stipulations, 200 

(ix) 


X  CONTENTS. 

CHAPTER  VII. 

FORM— COMPLETION   OF  CONTRACT— INLAND   BILLS. 

Section 

I.  Stamps 209 

II.  Delivery 216 

III.  Inland  and  Foreign  Bills, 232 

IV.  Parts  or  Sets  of  Parts, 237 

CHAPER  VIII. 

CAPACITY. 

I.  Civil  Restrictions, 244 

II.  Alien  Enemies, 248 

III.  Idiots  and  Lunatics, 256 

IV.  Drunkards,  « 261 

V.  Infants 265 

CHAPTER  IX. 

CAPACITY — MARRIED  WOMEN. 

I.  Coverture  at  Common  Law  and  by  Statute, 279 

II.  Wife's  Separate  Estate 300 

III.  Rights  of  Husband, 314 

CHAPTER  X. 

CAPACITY— CORPORATIONS   AND    GOVERNMENTS. 

I.  Corporations, 327 

II.  Municipal  Corporations, 336 

III.  Governments, 348 

CHAPTER  XI. 

CAPACITY— PRINCIPAL  AND   AGENT. 

I.  Liability  of  Principal, 352 

II.  Liability  of  Agent, 378 

III.  Defenses, 386 

CHAPTER  XII. 

CAPACITY— PARTNERS,  EXECUTORS,  AC. 

I.  Partners, 394 

II.  Personal  Representatives, 438 


CASES  CITED  IN  VOLUME  ONE. 


A. 


Abberger  v.  Marrin, 

39 

Abbey  v.  Chase, 

190,  533 

Abbott  v.  Bailey, 

428,  432 

v.  Hendrick, 

280 

v.  McKinley, 

455 

v.  Rose, 

13S,  283,  296 

v.  Winchester, 

453 

Abeel  v.  Seymour, 

510 

Abel  v.  McMurray, 

29,  40,  54 

v.  Sutton, 

593,  595 

Aborn  v.  Bosworth, 

352 

Abpt  v.  Miller, 

554,  578 

Abraham  v.  Dti  Bois, 

354 

Abrahams  v.  Skinner, 

286,  287 

Abrey  v.  Crux, 

88 

Absolon  v.  Marks, 

232 

Ackerman  v.  Runyon, 

396 

v.  Westervelt, 

67 

Adams  v.  Addington, 

316 

v.  Bankhart, 

551 

v.  Cordis, 

55 

v.  Curry, 

447 

v.  Flanagan, 

506 

v.  Hamell, 

343 

v.  Jones, 

333 

v.  King, 

230,  231 

v.  Reid, 

569 

v.  Ruggles, 

175,  555 

Bank  v.  Jones, 

341 

Adansonia  Fibre  Co.,  In  re,  177,  178,  570 
Adsetts  v.  Hives,  288 

jEtna  Nat.  Bank  v.  Charter  Oak  Ins. 

Co.,  477,  516 

v.  Winchester,  508 

Agace.  Ex  parte,  579 

Aggs  v.  Nicholson,  81,  196,  200 

Agnew  v.  Piatt,  57 

Agricultural  Nat.  Bank  v.  Sheffield, 

24,  26,  41 
Abein  v.  Goodspeed,  544 

Ahrens  v.  State  Bank,  453 

Aiken  v.  Cathcart,  253,  283,  291 

v.  Marine  Bank,  188 

Akers  v.  Demond,  19,  43,  45 

Alabama  Coal  Mining  Co.  v.  Brain- 

ard,  177,  212,  261,  565,  568 

Albee  v.  Carpenter,  465 

Albietz  v.  Mellon,  598,  599 

Albright  v.  Griffin,  266 

v.  Russell,  116 

Alcalda  v.  Morales,  20 

Alcock  v.  Alcock,  380 

Alder  v.  Bucklev,  5U6 


PAGE. 

Aldous  v.  Cornwell,  159 

Aldridge  v.  Branch  Bank,  90,  92,  344 

Aldrich  v.  Graves,  392,  399 

v.  Hagan,  327 

Alexander  v.  Bouton,  435,  437 

v.  Commissioners,  493 

v.  Hutcheson,  396 

v.  McKenzie,  542 

v.  Oaks,  121,  129 

v.  Sizer,  178 

v.  Thomas,  151 

v.  Wilkes,  345 

Alger  v.  Scott,  419 

Allen  v.  Allen,  390 

v.  Averv,  167 

v.  Berryhill,  377 

v.  Bratton,  24,  25,  37 

v.  Davis,  151 

v.  Deming,  91 

v.  Fuller,  441,  443 

v.  Keeves,  93 

v.  Kemble,  19,  24,  40 

v.  Louisiana,  486 

v.  M-iwson,  101,  262 

v.  Rostain,  17S 

v.  Sea,  104 

v.  Sea,  &c,  Assurance  Co.,  263 

v.  Sullivan,  79 

v.  Tate,  235,  465 

v.  Waldgrave,  180,  534 

v.  Watson,  30,  31 

v.  Wilkins,  464 

Alliance  Bank  v.  Kearsley,  563 

Allis  v.  Billings,  377,  378 

Allison  v.  Hubbell,  98 

v.  Juniata  County,  110 

Alsop  v.  Goodwin,  132 

v.  Todd,  392 

Alston  v.  Boyd,  377 

v.  Heartman,  230,  240 

v.  Wingfield,  160 

Alves  v.  Hodgson,  35,  112 

Ambrose  v.  Hopwood,  169,  170 

American  Emigrant  Co.  v.  Clark,  125,  133 

Exch.  Bank  v.  Blanchard,  112 

Ins.  Co.  v.  Cutler,  96 

v.  Oaklev,        82,  469, 

508,  518 

v.  Wellman,  472 

v.  Woodruff,  96 

Life  Ins.  Co.  v.  Town  of 

Bruce,  488 

Nat.  Bank  v.  Bangs,     165,  304 

Ames  v.  Drew,  510 


All 


CASES    I  [TED    IX    VOLUME   OXE. 


taok. 
Ames  v.  Foster,  408,  445 

Araev  v.  Mayor,  &c.,  of  Allegheny 

City,  486 

Amison  v.  Ewing,  180,  213,  214 

Amner  v.  Clark,  350,  351 

Ancona  v.  Marks,  341,  525 

Anderson  v.  Bullock,  80 

v.  Drake,  94,  95,  167 

v.  Irwin,  514 

v.  Maltby,  587 

v.  l'earce,  205 

v.  Starkweather,  326 

v.  Walwas,  382 

v.  Weston,  89,  97,  342,  593,  595 

v.  Wheeler,  58 

v.  Wilburn,  78 

(' ity  v.  Beal,  492 

Anderton  v.    Shoup,  182 

Andover    v.  Grafton,   484,  485,  523, 

524,  547 

Andrew  v.  Blachley,  93 

Andrews  v.  Allen,"  179,  532 

v.  Carr,  34,  48 

v.  Estes,  193 

v.  Franklin,  156 

v.  Harvev,  141 

v.  Herriot,  39,  51,  78 

v.  Hoxie,  354 

v   Kneeland,  505 

v.  Planters'  Bank,  581,  583 

v.  Pond,  22,  24,  42 

v.  Torrey,  18,  23,  44 

Androscoggin  Bank  v.  Kimball,  87,  283, 

292,  544 
Angel  v.  McLellan,  391 

Ankerstein  v.  Clarke,  458 

Anonymous  v.  Harrison,  529 

Anthony  v.  County  of  Jasper,  488 

v.  Harrison,  75,  80 

Antoine  v.  Morshead,  376 

Apgar  v.  Hiler,  225 

Appleby  v.  Biddulph,  112,  221 

Appleton  v.  Binks,  178 

Arayo  v.  Uurrell,  32 

Archer  v.  Shea,  426 

Arden  v.  Sharpe,  575,  577 

Arents  v.  Commonwealth,  83,  481 

Arfridson  v.  Ladd,  178 

Argenbright  v.  Campbell,  81 

Arlington  v.  1  lines,  535 

Armani  v.  Castrique,  353 

Armendiaz  v.  Lema,  36 

v.  Sana,  19 

Armfield  v.  A'lport,  234 

v.  Tate,  399 

Armitt  v.  Breame,  88 

Armour  v.  McMichael,  18,  35,  39,  51 

Armstrong  v.  Harshman,      255,  283,  286, 

291 

v.  Hnssey,  600 

v.  Kirkpatrick,  187 

Arnold  v.  Cheque  Bank,  29(5,  336 

v.  Mayor  of  Poole,  82,  467 


PAGE. 

Arnold  v.  Potter,       19,  23,  24,  25,  26,  35,. 

41,  42,  45 

v.  Richmond  Iron  Works,       377, 

378. 

v.  Ringold,  412 

v.  Rock  River  V.  R.  R.,  312 

v.  Sprague,  179 

Arnot  v.  Erie  Ry.  Co.,  477 

Arnott  v.  Redfern,  41 

A  mould  v.  Revoult,  457 

Attcher  v.  Douglass,  224 

Arthur  v.  Broadnax,  429 

Artisans'  Bank  v.  Park  Bank,  38 

Ashby  v.  Ashby,  109,  185,  229 

Ashuelot  Manuf.  Co.  v.  Marsh,  517 

Asphitel  v.  Bryan,  250 

Aspiuall  v.  Wake,  184 

Aspinwall   v.  Commissioners  of  the 

County  of  Daviess,  487 

v.  Meyer,  516 

Astley  v.  Johnson,  558 

Astor  v.  Benn,  54 

Atcheson  v.  Scott,  157 

Athol  Machine  Co.  v.  Fuller,  420 

Atkin  v.  Berry,  573 

Atkins  v.  Brown,  188 

v.  Cobb,  530 

v.  Plympton,  328 

Atkinson  v.  Mackreth,  586 

v.  Manks,  141 

v.  Richardson,  44* 

Atlantic  State  Bank  of  Brooklyn  v. 

Savery,  554,  578 

Atlas  Nat.  Bank  v.  Savery,  542,  585 

Atterbury  v.  Biggerstaff,  130 

Attwood  v.  Munnings,  456,  500,  503,  507, 

542,  543 
Atty.-General  v.  Life,  &c,  Ins,  Co.,     472, 

483 

Atwater  v.  Roelofson,  42 

v.  Streets,  352 

v.  Townsend,  52 

v.  Walker,  18,  23,  36,  39 

Atwood  v.  Griffin,  253,  254,  262 

Auerbach  v.  Le  Sueur  Mill  Co.,  471 

v.  Pritchett,  129 

Augusta  Bank  v.  Augusta,  84 

Aurentz  v.  Anderson,  382 

Austell  v.  Rice,  239,  607 

Austen  v.  Miller,  106,  108 

Austin  v.  Birchard,  338 

v.  Blue,  279 

v.  Bunyard,  93,  94 

v.  Burns,  319 

v.  Innes,  41 

v.  Kinsman,  131 

v.  Roberts,  237 

v.  Vandermark,  584 

v.  Whitlock,  80 

Australia  S.  N.  Co.  v.  Marzetti,      82,  467 

Averett's  Admr.  v.  Booker,  141,  !42 

Avery  v.  Latimer,  74,  76,  243,  215,  271, 

416' 


CASES   CITED    IX    VOLUME   ONE. 


XUI 


Avery  v.  Lauve, 

±'AUH. 

508 

v.  Van  Sickle, 

440,  441 

Awde  v.  Dixon, 

254,  297 

Ayer  v.  Tilden, 

41 

Aylett  v.  Ashton, 

433 

Ayiuar  v.  Sheldon, 

28, 

37,  38,  50 

Ayres  v.  Burns, 

393 

v.  Milroy, 

348 

v.  Probasco, 

288 

Ayrey  v.  Fearnsides, 

113 

.  134,  319 

B. 

Babcock  v.  Beman,  183,  238 

v.  Stone,  573,  577 

Bachelder  v.  Sargent,  439 

Backhouse  v.  Harrison,  588 

v.  Selden,  29 

Backman  v.  Charlestown,  489 

Backus  v.  Danforth,  266,  273 

Bacon  v.  Bicknell,  106 

v.  Fitch,  230,  231 

v.  Hutchings,  566 

v.  Mississippi  Ins.  Co.,  470 

v.  Page,  159 

Badcock  v.  Steadman,  345 

Badger  v.  Phinney,  401 

Bailey  v.  Bainberger,  401 

v.  Edwards,  225 

v.  Heald,  29,  40,  54 

v.  Rawlev,  500 

v.  Simonds,  129,  130 

v.  Smock,  277,  279 

v.  S.  W.  R.  R.  Bank,  263 

v.  Town  of  Lansing,  489 

Bain  v.  Whitehaven,  53 

Bainbridge  v.  Owen,  119 

v.  Wilcocks,  25 

Baird  v.  Blaigrove,  80 

v.  Cochran,  574 

v.  Underwood,  112 

Baker  v.  Armstrong,  418 

v.  Arnold,  97 

v.  Baker,  328 

v.  Block,  67 

v.  Chambers,  223 

v.  Chambles,  193,  484,  523 

v.  Charlton,  573,  577 

v.  Deming,  533 

v.  Gregory,  438 

v.  Kennett,  396 

v.  Robinson,  68 

v.  Todd,  120 

v.  Wheaton,  56 

Balch  v.  Onion,  97 

Balcornbe  v.  Northrup,  241,  497 

Baldwin  v.  B.mk  of  Newburg,      218,  515 

v.  Freydendall,  342 

v.  Hale,  55,  57,  58 

v.  Newbury,  241 

Balfour  v.  Ernest,  470 

Ball  v.  Allen,  244,  247,  248,  277 


PAGE. 

Ball  v.  Franklinite  Co.,  30 

v.  Powers,  91 

Ballard  v.  McKenna,  378 

Pavement  Co.  v.  Mandel,         523 

Ballin  v.  Dillaye,  437,  441 

Ballou  v.  Spencer,  564 

v.Talbot,  190,215,533 

Ballston  Spa  Bank  v.  Marine  Bank, 

519,  527 
Balme  v.  Wombough,  19,  42,  43 

Baltimore  and  Ohio  R.  R.  Company 

v.  Glenn,  30 

Banbury  v.  Lisset,  141,  276 

Bancher  v.  Fisk,  58 

Bancroft  v.  Consen,  242 

Bank  v.  Cook,  182,  183 

v.  Supervisors,  131 

of  America  v.  Woodworth,  94,  162, 

165,  167 

Bank  of  Bengal  v.  Fagan,  507 

Bengal  v.  Macleod,  507 

British    North    America   v. 

Ellis,  315 

Bank  of  British    North  America  v. 

Hooper,  179,  198,  203 

Bank  of  Chillicothe  v.  Chillicothe, 

470,  471,  472,  483 

Columbia  v.  Patterson,     82,  469, 

499,  508 

Commerce  v.  Selden,        177,  575 

Commonwealth  v.  Curry,        138 

2S3,  295 

v.  McChord,  290 

v.  Mudgett,    599 

v.  Curry,        296 

Cumberland  v.  May  berry,         91 

Deer  Lodge  v.  Hope  Mining 

Co.,  507,  526 

Bank  of  England  v.  Anderson,      164,  475 

Gallipolis  v.  Trimble,  55 

Genesee  v.  Patchin  Bank,       184, 

241,  477 

Georgia  v.  Lewin,  19,  21,  42 

Hamburg  v.  Johnson,      505,  546 

Huntington  v.  Hysell,  1 T  ■ 

Illinois  v.  Brady,  26,  38,  41 

Ireland  v.  Evans  Charities,  296 

Kentucky  v.  Garey,        253,  283, 

291 

v.  Goodale,  311 

v.  Sanders,      144,  180, 

534 

Lafayette  v.  Brufl',  416 

Limestone  v.  Penick,       138,  285, 

295,  296 

Louisiana  v.  Williams,     34,  101, 

410 

Manchester  v.  Slason,  241 

Metropolis  v.  Jones,  518 

Middlebury  v.  Rutland  Ry.,     82 

Missouri  v.  Vaughan,  166 

Mobile  v.  Brown,  127 

Montgomery  Co.  v.  Walker,  225 


CASES   CITED    IN    VOLUME   ONE. 


PAGB 

Bank  of  Montreal  v.  Page,  590 

Newbury  v.  Richards,  162 

New  Orleans  v.  Matthews,     874, 
596 
( Orleans  v.  Meirill,  106 

Peru  v  Famsworth,  106,  107 
Pittsburg  v.  Neal,  283,  284,  853 
Port  Gibson  v.  Baugh,  597 

Rochester  v.  Bo  wen,  581 

v.  Gray,  78 

v.  Monteath,  176,  178, 
572 
Rome  v.  Rome,  83,  480 

Rutland  v.  Woodruff,  18,  34 

Sherman  v.  Apperson,  266,  313 
South  Carolina  v.  Case,  175 

v.    Humph- 
reys, 590,  595,  601 
Bank  of  South  Carolina  v.  M' Willie,  508 
The  State  of  S.  C.  v.  Herbert, 

506 
St.  Albans  v.  Gilliland,  584,  599 
St.  Clairsville  v.  Smith,  75 

The  State  v.  Wheeler,  184 

State  of  N.  Y.  v.  Farmers' 
Bank,  184 

Bank  of  the  State  of  N.  Y.  v.  Farmers' 

Branch,  519 

Bank  of  State  of  N.  Y.  v.  Muskingum 

Branch,  184,  240,  241 

Bank  of  Steubenville  v.  Hoge,  224 

Tennessee  v.  Saffarrans,  581 

Troy  v.  Topping,  606 

United  States  v.  Beirne,  500 

v.  Dandridge,  515 
v.  Daniel,  3,  351 
v.  Davis.  546 

v.  Donnallv,      51, 
52 
v.  Dunn,  518 

v.  Lyman,  241 
v.  Smith,  170 

v.  United  States, 
41,  54,  143 
Van  Dieman's  Land  v.  Vic- 
toria Bank,  334 
Bank  of  Vergennes  v.  Cameron,  575,  5S4, 

588,  592 

Washington  v.  Pierson  499 

v.  Triplett,  49 

Banks  v.  Weris,  343 

v.  Greenleaf,  57 

Banorgee  v.  Hovey,  533 

Barber  v.  Backhouse,  575,  579 

v.  Gingel,  510 

Barbour  v.  Litchfield,  184 

Barden  v.  Keverberg,  430 

v.  Southerland,    73,  255,  289,  291 

Barfoot  v.  Good  hall,  602 

Barker  v.    Mechanics'  Ins.  Co.  191, 

194,  206,  470,479 
v.  Stearn,  138,  296 

v.  Sterne,  22,  92,  287,  336 


Barlow  v.  Bishop, 

v.  Broad  hurst, 
v.  Cong.  Society, 
Barnard  v.  Cushing, 
Barn  by  v.  Barn  by, 
Barnes  v.  De  France, 
v.  Gorman, 
v.  Graham, 


PAGE. 

178,  417,  461 

135,  320 

192,  207,  210 

302 

397 

431,  439 

320 

130 


Ontario   Bank,    107,  379, 

471,  512,  514,  519 

v.  Pearson,  460 

Barnet  v.  Skinner,  104,  222 

v.  Smith,  8 

Barnett  v.  Lichtenstein,  423 

Barney  v.  Newcomb,  25,  34,  241 

Barnum  v.  Young,  435 

Barrera  v.  Alpuente,  33 

Barrett  v.  Barrett,  48 

v.  Buxton,  385 

v.  County  Ct.  of  Schuyler  Co.,  490 

v.  Russell,  550,  585 

v.  Swann,  576 

Barrick  v.  Austin,  520 

Barriere  v.  Nairac,  273 

Barrington  v.  Bank  of  Washington,     515 

Barrow  v.  Bispham,  74 

Barrows  v.  Downs,  30 

v.  Lane,  67 

Barry  v.  Merchants'  Exch.  Co.,  470,  47-2, 

483 

v.  Pike,  531 

v.  Ransom,  217 

Barth  v.  Kaso,  416,  421 

Bartholomew  v.  Finnemore,  400,  401 

Bartiugton  v.  Bradley,            420,  441,  448 

Bartlett  v.  Board  of  Education,  288 

v.  Chouteau  Ins.  Co.,  472 

v.  Emery,  392 

Ex  parte,  286 

v.  Hawley,  182,  219 

v.  Tucker,         174,  190,  221,  536 

v.  Wells,  395 

Bartley  v.  Hodges,  55 

Barton  v.  Beer,  407,  431 

Bartsch  v.  Atwater,  56 

Barwick  v.  White,  608 

Bascom  v.  Young,  577 

Bagley  v.  Buzzell,  103 

Bass  v.  Bean,  412 

v.  O'Brien,                      179,  203,  219 

v.  Randall,  178 

Bastable  v.  Pool,  541 

Batchelder  v.  Sargent,  444 

Bates  v.  Ball,  384 

v.  Best,  527 

v.  Boston  and  N.  Y.  C.  R.  R.,      78 

v.  Leclair,  147 

Bathe  v.  Taylor,  98 

Battley  v.  Lewis,  553 

Batty  v.  Carswell,  506 

Baugh  v.  Ramsey,  131 

Baughn  v.  Shackleford,  612 

Baxeudale  v.  Bennett,  282 


CASES   CITED    IN    VOLUME   ONE. 


PAGE 


Baxter  v.  Lord  Portsmouth,  377,  378,  379, 


554 

320 

189 

135 

301 

460 

392 

211 

61.  88,  91,  92 

324 

584 

503,  542 

54 

378 

104,  109 

30,31,106,108,115 

239 


v.  Plunkett, 
v.  Stewart, 
Bav  v.  Cook, 
v.  Freazer, 
v.  Shrader, 
Baverque  v.  Haley, 
Bay  lis  v.  Dinely, 
Bayliss  v.  Pearson, 
Bayley  v.  Taber, 
Bavly  v.McKnight, 
Beach  v.  State  Bank, 
v.  Vandewater 
Beall  v.  January, 
Beals  v.  See, 
Bean  v.  Arnold, 
v.  Briggs, 
v.  Dolliff, 
v.  Morgan, 
Bear  v.  Bear, 
Beard  v.  Dtdolph, 
v.  Webb, 
v.  White, 
Beardsley  v.  Baldwin, 
v.  Hill, 
v.  Knight, 
v.  Southmayd 
Beattie  v.  Browne, 
Beaity  v.  Anderson, 

v.  Tete, 
Beavan  v.  McDonnell, 
Beaver  Co.  v.  Armstron 
Beauregard  v.  Einier, 
Beckwith,  In  re, 

Bedford  Ins.  Co.  v.  Covell,    1/9,  21/,  oS6 
Beebe  v.  Hutton,  - 

Beecham  v.  Smith, 
Beeching  v.  Westbrook, 
Beekman  v.  Wilson, 
Beeler  v.  Young, 
Beeman  v.  Duck, 
Beer  v.  Hooper, 
Beers  v    Pi-  ruix  Glass  Co., 
Begbie  v.  Levi, 
Behrens  v.  McKenzie, 
Belcher  v.  Smith, 
Belford  v.  Crane, 
Bell  v.  Bruin, 
v.  Ingestre, 
v.  Kellar, 
v.  Ladd, 
v.  Morehead 
v.  Packard, 
v.  Reed, 
Beller  v.  Marchant, 
Belloc  v.  Davis, 
Belo  v.  Commr's  Forsyth  Co., 
Belton  v.  Briggs, 


Benbam  v.  Lord  Mornington, 
Benjamin  v.  Arnold, 
Benners  v.  Clemens, 
Bennett  v.  Brumfitt, 
v.  Farnell, 
Bennington  v.  Dinsmore, 
Benthall  v.  Judkins, 

Benton  v.  Martin, 

Berkley  v.  Canon, 

Bernard  v.  Barry, 

Bernheimer  v.  United  States, 

Berrien  v.  Wright, 

Berrill  v.  Smith, 

Berwick  v.  Huntress, 

Besancon  v.  Shirley, 

Best  v.  Givers, 

Belts  v.  Ba«ley, 
v.  Kimpton, 

Beverley's  Case,  n 

Beverley  v.  Lincoln  G.  E.  oo., 


108, 


Benedict  v.  Cowden, 

v.  Cox, 
Benfield's  Case. 
Ben  ham  v.  Bishop, 


Bickerton  v.  Bunell, 
Bierne  v.  Dunlap, 
Bierv  v.  Haines, 
Biesenihal  v.  Williams, 
Bigelow  v.  Colton, 
v.  Denison, 
v.  Grannis, 
Bilderback  v.  Burlingame, 
Billgerry  v.  Branch, 
Bingham  v.  Calvert, 
v.  Kimball, 
v.  Stewart, 
Binney  v.  Plumley, 
Birckhead  v   Brown, 
Bird  v.  Brown, 

v.  Daggett, 
Birdsall  v.  Russell, 
Bire  v.  Moreau, 
Bishop  v.  Rowe, 

v.  Young, 
Biskup  v.  Oberle, 
Bisland  v.  Provosty, 
Bissel  v.  First  Nat.  Bank, 
Bissell  v.  City  of  Jeflersonvme,   490,  493 

;;  Sis!  ^     18,19,34,35 


XV 

PAGE. 

30 
224 
27,  35,  54 
65 
249,  250 
231 
97 
345,  349 
385,  386 
16,  31,  47 
373 
44 
343 
289 
128 
392 
55,  57 
464 
380 
82,  467, 
408 
216 
12S 
81 
104,  105 
67 
525,  527 
396 
129,  158 
375 
231,  280,  612 
181 
192,  210,  220 
334 
10 
526 
471,  478,  543 
83,  468 
354 
232 
279 
106,  228 
449 
516 


..  Mich.  S.  R.  R-, 
Black  v.  Enterprise  Ins.  Co., 

v.  Rogers, 

v.  Ward, 

v.  Wood  row, 
Blackburn  v.  Brooks, 
Blackman  v.  Lehman, 


300,  305,  306 
226 
552 
400 


15  acKman  v.  ^'»"»"i  v    T      d/ 

Black  River  Ins.  Co.  v.  N.  Y.  L.  & 

T.  Co., 
Blackwell  v.  Denie, 

v.  Hamilton, 
v.  Willard, 
Blades  v.  Free, 
Blaikie  v.  Griswold, 
Blair  v.  Bank  of  Tennessee, 
v.  First  Nat.  Bank, 


477 
239 
71 
127 
329 
126 
114,  244 


348 
326 
78 
373 
534 
111 
170 
519 


XVI 


CASES   CITED    IN    VOLUME   ONE. 


PAQE. 

Blake  v.  Coleman,          112,  152,  303,  315 

Blakely  v.  Bennecke,  206 

On! nance  Co.,  In  re,  267 

Blakeman  v.  McKay,  178 

Blakemore  v.  Wood,  154 

Blanchard  v.  Kanll,  209,  533 

v.  Russell,  57 

v.  Sheldon,  237,  335,  337 

v.  Williamson,  335 

I!  anckenhagen  v.  Blundell,  235 

Bland  v.  O'Hagau,  291 

v.  People,  104 

Blevins  v.  Blevins,  141,  142 

Bliss  v.  Houghton,  55 

v.  Railroad,  385 

Block  v.  Bell,  234,  263 

v.  ( Jommissionere,  489 

Blodgett  v.  Durgin,  27,  28,  29, 49, 162, 167 

v.  Jackson,  248,  565 

v.  Sleeper,  559 

v.  Weed,  577 

Blood  v.  Marcuse,  522 

v.  Northrup,  105,  125,  271 

Bloom  v.  Helm,  581 

v.  Stern,  582 

Bloomingdale  v.  Lisberger,  408,  410,  437 

Blouin  v.  Liquidators  of  Hart,  120 

Blount  v.  Bestland.  465 

nberg  v.  Adams,  429 

L   nit  v.  Bates,  327 

v.  Walker,  472 

Board  v.  T  &  P.  Ry.  Co.,  83,481 

of  Commissioners  v.  Bright,       481 

Boardman  v.  Gore,  586 

Boatmen's  Saw  Bank  v.  Collins,  433 

Bohs  v.  Hansell,  393 

Bodley  v.  Higgins,  341 

Boehm  v.  Sterling,  159 

Bogert  v.  Gulick,  415 

Boggs  v.  Lancaster  Bank,  521 

Boit  v.  Corr,  167 

Bolitho,  Ex  parte,  175,  571,  572 

Bolles  v.  Stearns,  251,  252 

Bolton  v.  Dtigdale,  134,  319 

v.  Puller,  544 

Bonbonus,  Ex  narte,       550,  554,  579,  586 

Bond  Debt  Cases,  491,  494 

v.  Stockdale,  279,  280 

Bonnell  v.  Covington,  128 

v.  Mawha,  4 

Bonney  v.  Reardin,  391 

Bonneau  v.  Dinsmore,  370 

Boody  v.  McKenney,  392 

Booker  v.  Kirkpatrick,  374 

v.  Tally,  527 

Bookstaver  v.  Jayne,  346 

Bool  v.  Mix,  389 

Booth  v.  Grove,  548 

v.  McFarland,  390 

v.  Wallace,  139,  295,  297 

v.  Quin,  585,  599 

Booyer  v.  Hodges,  608 

Boozer  v.  Anderson,  316 


PA.OB. 

85 

376 

464 

319 

343 

130 

330 

211 

552 

28 

236 

276 

30 

21 

328,  329,  330 

124 

8,  49,  93 

513 

240 

170 

280 

170 

108,  314 

325 

40 

105,  231 

430,  448 

81 

158 

186,  242 

46 

17 

429 

136,  283,  295 

83,  84,  289,  480 

253,  291,  599 

581 

320 

169 

398 

Boykin  v.  Bank  of  Mobile,  148 

Boylan  v.  Dickerson,  74 

Boyle  v.  Skinner,  176,  235,  572 

v.  Zacharie,  56,  57 

Bozeman  v.  Browning,  389 

Brabston  v.  Gibson,  36,  37,  49 

Brackett  v.  Norton,  30 

Bradford  v.  Greenaway,  420,  435 

v.  Randall,  78 

Bradlaugh  v.  De  Rin,  26,  47,  53,  325 

Bradlee  v.  Boston  Glass  Co.,  178,  179 

Bradley  v.  Anderson,  133 

v.  Ballard,  488 

v.  Bardsley,  330 

v.  Bentley,  349 

v.  Burwell,  226 

v.  Delaplaine,  93 

v.  Heath,  185 

v.  Lill,  120,  135 

v.  Morris,  129 

v.  Patton,  171 

Bradly  v.  Pratt,  391,  393 

Bradshaw  v.  Apperson,  552 


Bopart  v.  Hicks, 
Borland  v.  Sharp, 
Borst  v.  Spelman, 
Borum  v.  Reed, 
Bosley  v.  McAllister, 
Bothick  v.  Purdy, 
Botkins  v.  Spurgeon, 
Boitomley  v.  Fisher, 
Boudreairx  v.  Martinez, 
Bouldin  v.  Page, 
Bourdin  v.  Greenwood, 
Bourne  v.  Ward, 
Bowditch  v.  Soltyk, 
Bowen  v.  Bradley, 

v.  Byrne, 

v.  Darby, 

v.  Newell, 

v.  Stoddard, 
Bower  v.  State  Bank, 
Bowes  v.  Howe, 
Bowers  v.  Hurd, 
Bowie  v.  Duvall, 
v.  Foster, 
Bowker  v.  Goodwin, 
Bowles  v.  Eddy, 

v.  Lambert, 

v.  Turner, 
Bowman  v.  Robb, 

v.  McChesney, 
Bowne  v.  Douglass, 

v.  Olcott, 
Boyce  v.  Edwards, 

v.  Owens, 
Boyd  v.  Brotherson, 
v.  Kennedy, 
v.  McCann, 
v.  Plumb, 
v.  Rumsey, 
Boydell  v.  Harkness, 
Boyden  v.  Boyden, 


CASES    CITED    IN    VOLUME   ONE. 


XV11 


PAGE. 

BraJy  v.  Chandler,  106 

Braham  v.  Bubb,  111 

Brainard  v.  N.  Y.  &  H.  E.  R.,  292 

Brainerd  v.  N.  Y.  &  H.  R.  R.,  83,  289, 

468 
Braithwaite  v.  Gardiner,  365 

Bramah  v.  Roberts,  562 

Branch  Bank  v.  Coleman,  224 

v.  Pierce,  94 

Brandlee  v.  Warren  Five  Cents  Sav- 
ings Bank,  522 
Brandon  v.  Scott,  558 
Brannin  v.  Loring,  189 
Branning  v.  Markhara,  130,  312 
Brannon  v.  Hursell,  176 
Brasher  v.  Davidson,  130 
Brashear  v.  Martin,  548 
Brayley  v.  Hedges,  550,  554 
Braynard  v.  Marshall,  48,  57,  303,  573 
Brazelton  v.  McMurray,  263 
Breck  v.  Cole,  90 
Breckenridge  v.  Ormsby,  377 
Breckinridge  v.  Shrieve,  562 
Bredow  v.  Mutual  Sav.  Inst.,  597 
Breeden  v.  Grigg,  345 
Breed  v.  Judd,  391 
v.  Pratt,  383 
Bremmerman  v.  Jennings,  171 
Brent  v.  Davis,  556 
Brenzer  v.  Wightman,  106 
Brett  v.  Ming,  158 
Brewer  v.  Brewer,  105 
Brewster  v.  Hobart,  502 
v.  McCardel,  92,  93 
v.  Silence,  276 
v.  Williams,  157 
Brick  v.  Scott,  421 
Brickett  v.  Spalding,  167 
Bridenbecker  v.  Lowell,  545 
Bridgeport  City  Bank  v.  The  Empire 

Stone  Dressing  Co.,  477 

Bridges  v.  Winters,  124 

v.  Revnolds,  124 

Briggs  v.  McCahe,  394,  402 

Brigham  v.  Henderson,  56 

Bright  v.  Judson,  25 

Brighton  Bank  v.  Merick,  58 

Brill  v.  Crick,  112,  300 

v.  Hoile,  141 

Brimhall  v.  Van  Campen,  31 

Brind  v.  Hampshire,  333 

Briscoe  v.  Bank  of  Commonwealth,      495 
Bristol  v.  Warner,  loo.  155,  279 

Bristow  v.  Sequeville,  35 

British  Linen  Co.  v.  Drummond,  51,  52, 

53 
Britton  v.  Diercker,  99 

Broadway  Savings  Bank  v.  Vorster,     542 
Brockway  v.  Allen,  194 

Bromage  v.  Lloyd,  340,  609 

Bromwich  v.  Loyd,  350,  365 

Bronson  v.  Rodes,  125 

Brook  v.  Galby.  392 


Brookinau  v.  Metcalf, 
Brookings  v.  White, 
Brooks  v.  Elkins, 

v.  Hargreaves, 
v.  Wigginton, 


PAGE. 

473 

417 

101,  108 

155 

444 


Broughton  v.  Manchester  Water 

Works  Co.,  467,  469,  470,  476,  479 

Brouner  v.  Appleby,  51S 

Brown  v.  Austin,  180,  534 

v.Barber,  111,315 

v.  Bebee,  139,  295 

v.  Broad,  590 

v.  Butchers'  and  Drovers'  B'k, 

61,  64,  538 


v.  Clark, 

595,  602 

v.  Chancellor 

591,  593 

v.  Collins, 

57 

v.  De  Winton 

232 

v.  Donnell, 

364, 

472, 

477,  531 

v.  Durham, 

395 

v.  Ector, 

445 

v.  Ferguson, 

352,  355 

v.  Gardner, 

L7,  25,  42 

v.  Gilman, 

103, 

227,  22b 

v.  Gracey, 

30 

v.  Hiatt, 

370 

v.  Hull, 

90,  171 

v.  Jackson, 

270 

v.  Jordhal, 

73,7 

379,  380 

v.  Kidger, 

562,  563 

v.  Leonard, 

603 

v.  Lockhart, 

73 

v.  Lusk, 

93 

v.  Maitbaus, 

454 

v.  Orr, 

412 

v.  Parker, 

52,  53, 

180, 

219,  505 

v.  Reynolds, 

345 

v.  Stone, 

52 

v.  Wiley, 

116 

Brownlee  v.  Arnold, 

161,307 

Brownell  v.  Winnie, 

222,  224 

Brimhall  v.  Van  Campen, 

41,  343 

Brind  v.  Hampshire, 

340 

Bristol  v.  Sprague, 

599 

British  Linen  Co.  v. 

Caledonian 

Ins. 

Co., 

296 

Bruce  v.  Carter, 

116,  309 

v.  Lord, 

194, 

214 

220,  261 

v.  Luck, 

52 

v.  Westcott, 

103,  285 

Brummagim  v.  Tallant, 

106 

Brumruel  v.  Enders, 

291, 

292.  253 

Brutt  v.  Pkard, 

91,  99 

Bryan  v.  Berry, 

501 

v.  Harrison, 

132 

Bryant  v.  Bryant, 

451 

v.  Durkee, 

239,  241 

v.  Eastman, 

67 

v.  Ed  son, 

49 

v.  Kelton, 

30 

v.  Lord, 

590 

v.  Merrill, 

404,411 

v.  Sheely, 

499 

XV1I1 


CASES   CITED    IX    VOLUME    ONE. 


PAGE. 

Buchanan  v.  Curry,  373 

Bucbegger  v.  Schultz,  124 

Buck  v.  Merrick,  1':'." 

v.  Steffey,  90 

Buckley  v.  Briggs,  469,  472 

Ex  parte,  177,  222,  .",7:; 

v.  Hann,  336 

Buckner  v.  Finley,  3,  16,  351 

v.  Lee,  176,  571 

Buffalo  City  Hank  v.  Howard,      598,  599 

Buffum  v.  Chadwick,  178,  238 

v.  Seaver,  174,  566 

B  iford  v.  Speed,  373 

Buhl  v.  Trowbridge,  300 

Buie  v   Pollock,  610 

Bulbeck  v.  Jones,  223 

Bulger  v.  Roche,  35,  51,  52 

Bull  v.  Allen,  225 

v.  o'Sullivan,  92,94,322 

vlSims,  110,143 

Billiard  v.  Bell,  243,271 

v.  Randall,  8 

v.  Thompson,   22,  29,  30,  46,  167 
Bnller  v.  Crips,  73,  350 

Bullock  v.  Dodds,  367 

v.  Hayter,  417 

v.  Taylor,  317 

Btillpin  v.  Clark,  433 

I'.ult  v.  Morrell,  178 

Burapass  v.  Timms,  89,  100,  150,  342 

Bunker  v.  Athearn,  315 

v.  Green,  328,  329 

Burbank  v.  Posey's  Adm'r,  194 

Burch  v.  Breckinridge,  439 

v.  Newberry,  129,  141 

Burchell  v.  Slo-'ock,  273 

Burchfield  v.  Moore,  294 

Burgess  v.  Merrill,  402 

Burke  v.  Allen,  365,  381,  394 

Burlingame  v.  Brewster,  207 

Burlington  R.  R.  v.  Clay  County,         110 
Burnett  v.  Hawpe,  433,  434,  440 

v.  Stearns,  124 

Burnbatn  v.  Allen,  135 

v.  Webster,  19,  49,  90,  184,  519, 

520 

Burnbeisel  v.  Field,  263 

Burns  v.  Jenkins,  133 

Burr  v.  Swan,  416,  444 

Burrell  v.  Jones,  178 

Burrill  v.  Smith,  403,  426 

Burrough  v.  Moss,  457,  458 

Burroughs   v.    Comrs.  of  Richmond 

Co.,  84,  110,  384,  386 

v.  Wilson,  172 

Burrows  v.  Hannegan,     38,  47,  51,  94,  95 

v.  Jemimo,  58 

Burson  v.  Huntington,  326,  328,  331,  335, 

339 

Burthe  v.  Donaldson,  159 

Burton  v.  Brooks,  126 

v.  Slaughter,  (ilO 

Bush  v.  Peckard,  242,  267 


Bushnell  v.  Beloit, 
Bussey  v.  Whi laker, 
Bu.-tin  v.  Rogers, 
Butler  v.  Crips, 
Butterfield  v.  Davenport, 
Butler  v.  Horwitz, 

v.  Lee, 

v.  Paine, 

v.  Price, 

v.  Stocking, 
Buzzell  v.  Bennett, 
Byars  v.  Doores, 
Byrd  v.  Holloway, 


c. 


PAGE. 

485 

72 

89,  344 

234 

171 

125 

343 

126 

455 

582,  583 

393 

190,  533,  537 

185,  606 


328, 


Cabbott  v.  Radford, 
Cady  v.  Shepherd, 
Cadwallader  v.  West, 
Cagevin  v.  Town  of  Hancock 
Cahn  v.  Dutton, 
Cahoon  v.  Moore, 
Cain  v.  Mack, 
Caldwell  v.  Cassidy, 
v.  Craig, 
v.  Evans, 
v.  Lawrence, 

v.    Nat.    Mohawk    Valley 
Bank, 
Caldwell  v.  Neil, 

v.  Rodman, 
v.  Sawyer, 
v.  Stileman, 
Calhoun  v.  Davis, 

v.  Mechanics'  Bank, 
Calkins  v.  Smith, 
Callaghan  v.  Aylett, 
Callanan  v.  Van  Vleck, 
Callender  v.  Golson, 
Camden  v.  Mullen, 
Came  v.  Brigham, 
Cammer  v.  Harrison. 
Camp  v.  Byrne, 

v.  Knox  Co., 
v.  Tompkins, 
Campbell  v.  Farmers'  Bank, 

v.  Nichols,    20,  25,  26,  40, 
v.  Hooper, 
v.  Tate, 
v.  Upshaw, 
v.  Weister, 
v.  Wilcox, 
Campion  v.  Kille, 
Canadian  Bank  v.  McCrea, 
Canal  Bank  v.  Templeton, 
Canal,  &c,  R.  R.  Co.  v.  Armstrong, 
Canrield  v.  Fairbanks, 
v.  Mcllvaine, 
Cannam  v.  Farmer,  395, 

Cape  Fear  v.  Wright, 
Caphart  v.  Dodd, 
(apron  v.  Capron, 


197, 
100, 


169, 


364, 
253, 


330 
591 
382 
48S 

67 
609 
54S 
170 
126 
168 

99 

217 
529 
157 
440 
589 
116 
416 
580 
170 
527 
512 
430 
470 
157 
473 
110 
277 
172 
342 
379 
224 
116 
128 
330 

30 
107 

97 
287 
379 
292 
411 
179 
202 
151 


CASES    (ITED    IX    VOLUME    ONE. 


Carew  v.  Northrup, 
Carey  v.  McDougald, 
Carleton  v.  Brooks, 
v.  Jen n ess, 
Carley  v.  Green, 
v.  Vance, 
Carlisle  v.  Chambers, 
v.  Davis, 
v.  Dubree, 
Carlon  v.  Kenealy, 
Carlos  v.  Fanconrt, 
Carmichael  v.  White, 
Carnalian  v.  Pell, 


PAOE. 

246 

107,  108 

129 

597 

454 

170 

47,  48 

127 

141 

154,  315 

111,  141 

131 

111,  113 

Carnegie  v.  Morrison,  18, 19,  30,  34,  35,  39 

Carpenter  v.  Carpenter,  3S2 

v.  Far ns worth,       183,  197,  235 

v.  King,  224,  21o 

v.  McClure,  71 

v.  McLaughlin,  67 

v.  Mitchell,  412 

v.  Provoost,  226 

v.  Snelling,  330 

Carr  v.  Hollidav,  379,  380 

v.  Le  Fevre,  83,  468 

Carran  v.  Little,  144 

Carrie  v.  Child,  72 

Carrier  v.  Cameron,        175,  554,  587,  588 

v.  Sears,  381 

Carrol  v.  Blencow,  429 

Carson  v.  Hill,  136,  295 

v.  Lucas,  105,  106,  205 

Carter  v.  Burley,  353 

v.  Carter,  90 

v.  Dubuque,  480 

v.  McClintock,  333,  338 

v.  Penn,  78,  127 

v.  Saunders,  241,  607 

v.  Union  Bank,  50 

v.  Whalley,  552,  600,  601 

v.  White,  524 

v.  Wolfe,  186 

Carver  v.  Carver,  459 

v.  Hayes,  108 

Carvick  v.  Vickery,  563,  566 

Casborne  v.  Dutton,  103.  107 

Casco  Bank  v.  Keene,  69,  70 

Casebolt  v.  Ackerman,  591 

("ash  v.  Kenuion,  42,  55 

v.  Taylor,  510 

Cason  v.  Wallace,  68,  234 

Cass  v.  Dillon,  487 

Castle  v.  Belfast  Foundry  Co.,  188,  471, 

503 
Castrique  v.  Buttigreg,  220 

(ate  v.  Patterson,  106,311 

Cater  v.  Eveleigh,  443 

Gates  v.  Woodson,  377 

Cat  hell  v.  Goodwin,  426 

Catherwood  v.  Chabaud,  607 

Caton  v.  Caton,  64 

Ca'.tron  v.  First  Universalist  Society 

of  Manchester,  471,  483,  514 

Catskill  Bank  v.  Stall,  584 


PAGE 

4:12 

2S4.  338 

384 


Caudell  v.  Shaw, 

Caulkitis  v.  Whisler, 

Cavender  v.  Waddingham, 

Cavitt  v.  James, 

Cecil  v.  Board  of  Liquidation, 

Cedar  Rapids  R.  R.  v.  Stewart, 

Central  Bank  v.  Lang, 

v.  Willard, 
Nat.  Bank  v.  Charlottesville 
R.  R. 
Central  Nat.  Bank  v.  R.  R.  Co., 
Savings  Bank  v.  Mead, 
Chaddock  v.  Van  .Ness, 
Chadsey  v.  McCreery, 
Chadvvick  v.  Allen, 
Chaffee  v.  Jones, 
v.  Taylor, 
Chamberlain  v.  Hopps, 

v.  Pacific  Wool,  &c,  Co.;  194 

v.  Walker,  559 

Chambers  v.  George,  127 

v.  Kingsbury,  78 

Chandler  v.  Glover,  398 

v.  Parker,  403 

v.  Westfall,  298 

Chapin  v.  Dobson,  20,  31 

v.  Shafer,  389,  402 

v.  Vt.  &  Mass.  R.  R.,  83,  289,  468 


247,  597 
489 
330 

232.  471 
302 


82,  468 

73 

597 

67 

238 

108,  229 

222 

70 

88,  333 


Chapman  v.  Cottrell, 
v.  Foster, 
v.  Kellogg, 
v.  Lipscombe, 
v.  Robertson, 


20,  340 

439,  445 

453 

94,  95 

19,  24,  29,  35, 

42,45 


339 

157 

391 

547 

147 

107 

439 

35 

330 

19,44 

57 

522 

592 

28,  50 

2ss 

581 

357 

Chemung  Canal  Bank  v.  Bradner,       138, 

286,  287,  296,  297,  582,  584 

v.  Supervisors,  183 

Chenot  v.  Lefevre,  248 

Chenowith  v.  Chamberlin,       50,  352,  581 

Cherry  v.  Clements,  437,  442 

v.  Colonial  Bank  of  Australia,  532 

Cheshire  v.  Barrett,  393 

Chesley  v.  Taylor,  292 

Chester,  &c,  R.  R.  Co.  v.  Lickiss,        334 

Chevallier  v.  Buford,  120,  121 

Chicago  Ins.  Co.  v.  Keiron,  126 


v.  Rose, 
v.  Wacaser, 
Chappie  v.  Cooper, 
Charles  v.  Blackwell, 
Charlton  v.  Reed, 
Charnley  v.  Dulles, 
Chartered  Bank  v.  Lempriere, 
Chartres  v.  Cairnes, 
Chartiers  Turnpike  v.  McNamara, 
Chase  v.  Dow, 

v.  Flagg, 

v.  Hathorn, 

v.  Kendall, 
Chatham  Bank  v.  Allison, 
Chauncey  v.  Arnold, 
Chazournes  v.  Edwards, 
Cheap  v.  Harley, 


XX 


CASES    CITED    IN    VOLUME   ONE. 


t  bicag  i,  &i ..  K.  R.  Co.  v.  West,  263 

Chick  v.  Trevett,  191,  206 

( Ihickering  v.  ( rreenleaf,  1  13 

( Ihicopee  Bank  v.  Phila.  Hank.  336 

Child  v.  Monins,  L84,  185,  605 

Childers  v.  Buulnois,  100 

( Ihildress  v.  Stuart,  12'i 

Childs  v.  Laflin,  167,108 

Chipman  v.  Foster,  198,  205 

v.  Tucker,  348 

<  It i^holm  v.  City  of  Montgomery,  482,  488 
Chitwood  v.  ( Iromwell,  231,  612 

Chomley  v.  Darley,  306 

Choriey,  Ex  parte,  468 

Chouteau  v.  Allen.  315 

v.  Merry,  426 

(  hristian  v.  Morris,  184,  604,  605 

Christie,  Kx  parte,  571 

Chrysler  v.  Renois,  121 

Church  v.  Imperial  Gas  Co.,    82,  407,  468 
v.  Sparrow,  554 

Churchill  v.  Cole,  36 

v.  Gardner,  334 

Churchman  v.  Martin,  111,  125,  311 

Cisne  v.  Chidester,  152 

Citizens'  Bank  v.  Police  Jury  of  <  <  n- 

cordia,  523 

Citizens'  Nat.  Bank  v.  Richmond,        297 

City  Bank,  Ex  parte,  82,  468 

of  New  Haven  v.  Perkins,  520 

v.  McChesney,  600 

Nat.  Bank  v.  Mahan,  495 

of  Aurora  v.  West,     24.  25,  83,  461, 

481 
Elizabeth  v.  Force,  84,  288 

Galena  v.  Corwith,  485 

.Muscatine  v.  Sterneman,  330 

San  Antonio  v.  Gould,  480 

v.  Lane,  83,  481 

Vicksburg  v.  Lombard,   484,  485, 
493,  538 
Williamsport  v.  Common- 
wealth, 483,  484 
Claflin  v.  Farmers' and  Citizens' Bank,  517 
Claiborne  County  v.  Brooks,  484 
Clampitt  v.  Newport,  607 
Clanton  v.  Barnes,                            37,  46 
Clapp  v.  Hale.  90 
v.  Rice,  07 
v   Rogers,                                     600 
Clark  v.  Blackstock,                        567,  571 
v.  Boyd,                               333,  609 
v.  Caldwell,                                    386 
v.  Conner,  52 
v.  City  of  Des  Moines,        482,  489 
v.  City  of  Janesville,                   288 
v.  Dearborn,                                   598 
v.  Des  Moines,                             481 
v.  Farmers  Mfg.  Co.,            73,  515 
v.  Farriugton,                                472 
v.  Field,                                244,  246 
v.  Hatch,  57 
v.  l«»wa  City,                            84,  110 


PAGE. 

Clark  v.  King, 

129 

v.  Merriam, 

161 

v.  Moses, 

168, 

608,  609 

v.  Peabody, 

548 

v.  Polk  Co., 

110 

v.  Reed, 

239 

v.  Segourney, 

11, 

339,  609 

v.  Sisson, 

280 

v.  Tiger, 

78 

v.  Titcomb, 

212, 

471,  48:; 

v.  Valentine, 

429 

Clarke  v.  City  of  Janesville,  74 
v.  City  of  Zanesville,  255 
Ex  parte,  249 
In  re,  177,  571 
v.  Johnson,  348 
v.  Percival,  114 
Company  v.  Board  of  Super- 
visors of  Culver  County,  484 
Clarke  v.  School  District,  470,  484 
Clason  v.  Bailey,  00 
Claverie  v.  Gerondias,  420 
Claxon  v.  Demaree,  139 
Claxton  v.  Swift,  350 
Claxtor  v.  Swift,  276 
Clav  v.  Cottrell,  577 
v.  Oakley,  531 
v.  Power,  458 
v.  Smith,  57 
Clayes  v.  White,  298 
v.  Hooker,  27,  41 
Clayton  v.  Gosling,  154,  275 
Clegg  v.  Lemessurier,  78,  80 
v.  Levy,  35 
Cleland  v.  Low,  425 
Clemens  v.  Conrad,  331 
Clement  v.  Leverett,  545 
Clendenin  v.  Southerland,  97 
Clerk  v.  Blackstock,  176,  222 
( lleveland  v.  Stewart,  206 
Cliukscales  v.  Hall,  '  422 
Cline  v.  Guthrie,  2«4 
Clinton  Nat.  Bank  v.  Graves,  91,  344 
Clopton's  Exr.  v.  Hall,  276 
Clopton  v.  Matheng,  443 
Clough  v.  Davis,                         88,  90,  343 
v.  Russell,  451 
('lower  v.  Wynn,  297 
Clute  v.  Robison,  74 
v.  Small,                         136,  295,  524 
Coakley  v.  Chamberlain,  443 
Coates  v.  McKee,  424,449 
Coats  v.  Robinson.  439 
(  obb  v.  Duke.                           270,  419,  401 
( lobine  v.  St.  .John,  4:>7 
Coburn  v.  Webb,  139,  284 
Cocheco  Nat.  Bank  v.  Haskell,  520 
Cock  v.  Fellows,  229,  246 
Cocke  v.  Branch  Bank,  562,  578 
Cockerill  v.  Barber,  42 
Cockrill  v.  Kirkpatrick,  127,  132 
Codwise  v.  Gleason,  273 
Coe  v.  Caynga  Lake  R.  R.,  74 


CASES    CITED    IN    VOLUME    ONE. 


XXI 


PAGE. 

Coffin  v.  Hill,  127 

Coffman  v.  Bank  of  Kentucky,  46 

v.  Campbell,  115 

Coger  v.  McGee,  139 

€ohen  v.  N.  Y.  Life  Ins.  Co.,  372 

v.  Prater,  272 

Coit  v.  Milliken,  78 

Co  I  bath  v.  Jones,  69 

Colbnrn  v.  Averill,  98 

Cole  v.  Handlev,  133 

v.  Parkin,"  273 

v.  Saxby,  397 

Coleham  v.  Cooke,  146 

Coleman  v.  First  Nat.  Bank,  217 

v.  Wooley,  427,  438 

Coles  v.  Trecothick,  502 

v.  Jones,  74 

Colgate  v.  Buckingham,  154 

Collen  v.  Wright,  531 

Collier  v.  Connelly,  419 

Collins  v.  Bradbury,  312,  313 

v.    Buckeve   State  Ins.,  182,  179, 

218,  219 

v.  Gilbert,  97 

v.  Johnson,  184 

v.  Lavenberg,  445 

v.  Lincoln,  127 

v.  Martin,  544 

v.  Kudolph,  438 

v.  Tabatier,  164 

v.  Underwood,  414 

Iron  Co.  v.  Burkam,  39 

Collis  v.  Emmett,  138,  248,  249,  283,  296, 

364 
Colson  v.  Arnot,  83,  251 

Colston  v.  Arnot,  468 

Colvin  v.  Currier,  443 

Combe's  Case,  502 

Commercial  Bank  v.  French,  240 

v.   Newport    Mfg. 
Co.,  82,  187,  469,  470 

Commercial  Bank  v.  Norton,  510 

v.  Routh,  359 

v.  Ullman,  78 

v.  Varnum,       351,  352 
v.  Warren,  575 

of  Buffalo  v.  War- 
ren, 556 
Commercial   Bank    of  Lake   Erie   v. 

Norton,  502 

Commissioners   of   Douglass    Co.    v. 

Boiles.  491,  493 

Commissioners    of    Johnson    Co.    v. 

January,  492 

Commissioners  of  Knox  Co.  v.  As- 

pinwall,  83,  491,  515 

Commissioners  of  Knox  Co.  v.  Nich- 
ols, 487 
Commissioners    of    Leavenworth    v. 

Keller,  488 

Commissioners    of    Marion    Co.    v. 

Clark,  83,  480 

Commonwealth  v.  Butterick,  263,  264 


PAGK. 

Commonwealth  v.  Butrick,  11 

v.  Chesapeake  Canal,  489 
v.  Commissioners  of 
Allegheny  Co.,  515 

Commonwealth  v.  Dallenger,  234 

v.  Emigrant  Savings 
Bank,  136 

Commonwealth  v.  Griffith,  78 

v.  Kendig,  344 

v.  Manley,  456 

v.  Pittsburgh,        471,  483 
v.  Bay,  61 

v.  Select  Councils  of 
Pittsburgh,  515,  523 

Commonwealth  v.  Spilman,  11 

Ex  rel.,  485 

Ex  rel.  Hamilton,  v. 
Pittsburgh,  485 

Commonwealth,  ex  rel.  Middleton,  v. 

Allegheny  County,  485 

Commonwealth,  ex  rel.  Reinboth,  v. 

Councils  of  Pittsburgh,  485 

Commonwealth,    ex   rel.  Whelen,   v. 

Pittsburgh,  485 

Commonwealth  Ins.  Co.  v.  Whitney,    229 
Conahan  v.  Smith,  38 

Concord  v.  Nat.  Bank  of  Derby  Line,  243 
Condon  v.  Pearce,  213,  22U,  292 

Confederate  Note  Case,  131 

Congregational  Soc.  v.  Goddard,  117 

Conine  v.  Junction,  &c,  R.  R.,  73,  76,  79 
Conklin  v.  Ogborn,  390,  396 

Conley  v.  Burson,  373 

Conlin  v.  Cantrell,  427,  438 

Conn  v.  Coburn,  393 

v.  Scruggs,  183 

v.  Thornton,  153 

Conn.  Mut.  Ins.  Co.  v.  C.  C.  &  C.  R. 

R.,  468 

Connecticut  Life  Ins.  v.  Duerson,         372 

Conner  v.  Abbott,  411 

v.  Clark,  194,  220 

v.  Routh,  148,  293 

Connolly  v.  Goodwin,  79 

v.  Hull,  391 

Connor  v.  Bellawont,  40 

v.  Donnell,  20,  43 

v.  Earl  of  Bellmont,  23 

v.  Martin.  456,  461 

Conover  v.  Mut.  Ins.  Co.,  514 

v.  Stillwell,  111 

Conrad,  In  re,  20 

v.  Le  Blanc,  413,  447 

Conro  v.  Port  Henry  Iron  Co.,    182,  204, 

218 
Conroe  v.  Birdsall,  395 

Consequa  v.  Willings,  40 

Consideraut  v.  Brisbane,  314 

Consolidated  Bank  v.  Henderson,  409,  436 
Continental  Nat.  Bank  v.  Nat.  Bank 

of  the  Commonwealth,  521 

Conway  v.  Smith,  440 

Cony  v.  Wheelock,  596 


XXI 1 


CASES  CITED    IN    VOLUME   ONE. 


PAGE. 

Cook  v.  Crawford, 

354 

v.  < loogens, 

298 

v.  (rray, 

276 

v.  Litchfield 

21,  37,  47 

v.  Lills, 

131 

v.  Moffat, 

20, 

25,  57,  58 

v.  Mut.  Ins. 

Co., 

171 

v.  Sanford, 

188 

v.  Satterlee,   102,  111,  113,  141,  319 

v.  Shearman,  325 

v.  Weirman,  320 

Cooke  v.  Clayworlh,  384 

v.  Colehan,  153 

v.  Horn,  154 

v.  Husbands,  433,  434 

v.  State  Nat.  Bank  of  Boston,    519 

Coolbrotli  v.  Purinton,  139,  297 

Co,, lev  v.  Bancroft,  405 

v.  Esteban,  199,  208 

Coolidge  v.  Ingler,  374 

v.  Buggies,  112 

Coombs  v.  Ingram,  279,  280 

v.  Janvier,  386 

Coon  v.  Brook,  444 

v.  Pruden,  560 

Coons  v.  Kendall,  186,612 

Cooper  v.  Bailey,  500,  563 

v.  Curtis,  519 

v.  Dedrick,  275 

v.  Karl  of  Waldegrave,  19,  25,  40 

v.  McClurkan,  57S 

v.  Meyer,  221,  250,  365 

v.  Poston,  234 

v.  Reaney,  31,  41 

Copper  Miners'  Co.  v.  Fox,  82,  467 

Coppock  v.  Bower,  331 

Cope  v.  Alden,  23 

v.  Daniel,  524 

Corbett  v.  Clark,  144 

v.  State  of  Georgia,  108,  151 

v.  Poelnitz,  427,  438 

v.  Stonemetz,  158 

Corgan  v.  Frew,      136,  139,  295,  300,  304 

Corlies  v.  Fleming,  223 

v.  Van  Note,  80 

Cormier  v.  De  Valcourt,  429 

Corn  Exch.  Ins.  Co.  v.  Babcock,  423,  436 

Cornell  v.  Moulton,  159 

v.  Barnes,  311 

v.  Hichens,  472 

Cornwell  v.  Pumphrey,  125 

Cornthwaite  v.  First  Nat.  Bank,  184, 

604,  605 

Corrie  v.  Estate  of  Billier,  330 
Corrigan  v.  Trenton  Del.  Falls  Co.,       79 

Corser  v.  Paul,  184,  519 

Coster's  Appeal,  289 

Costelo  v.  Crowell,  112,  306,  312 

Cota  v.  Buck,  141,  152 

Cote,  Ex  parte,  333,  336 

Cotes  v.  Davis,  419,  456 

Cotheal  v.  Blydenburgh,  18,  23 

Cottans  v.  Smith,  585 


PAGE 

Cotton  v.  Evans,  574 

v.  Van  Bokkelin,  586 

Couch  v.  Meeker,  345 
Council  Bluffs  Iron  Works  v.  Cuppy,  129 

County  of  Bates  v.  Winters,  489 

Callaway  v.  Foster,  487 

Cass  v.  Gillett,  489 

Hardin  v.  McFarlin,  485,  486 

Jasper  v.  Ballon,  493 

Macon  v.  Shores,  489 
Moultrie    v.    Rockingham 

Ten-Cent  Savings  Bank,  491 

County  of  Henry  v.  Nicolay,  487 

Randolph  v.  Post,  491 

Ray  v.  Vansycle,  490 

Scotland  v.  Thomas,  487 

Warren  v.  Marcy,  489 

Courand  v.  Vollmer,  75 

Court  v.  Partridge,  607 

Courtauld  v.  Saunders,  195 

Courtney  v.  Doyle,  276 

Courtois  v.  Carpenter,  41,  54 

Coursin  v.  Led  lie,  266,  279 

v.  Ledlie's  Admr.,  144 

Covington  v.  Burleson,  417 

Coward  v.  Hughes,  425 

Cowie  v.  Halsall,  170,  294 

v.  Harris,  89 

v.  Stirling,  230 

Cowing  v.  Altman,  89,  90 

Cowles  v.  Morgan,  440 

Cowperthwaite  v.  Sheffield,  144 

Cox  v.  Adams,  335 

v.  Beltzhoover,  231 

v.  Hickman,  564 

v.  Kitchen,  427 

v.  Slade,  275 

v.  Troy,  88,  334 

v.  Wallace,  133 

v.  United  States,  22 

Coxon  v.  Lyon,  99 

Coyle  v.  Satterthwaite,  129 

Craft  v.  United  States,  375 

Craig  v.  City  of  Vicksburg,  83,  481 

v.  Dimock,  328,  329 

v.  Hulschizer,  574 

v.  Price,  162 

v.  Richmond  District,  110 

v.  State  of  Missouri,  495 

Craighead  v.  Peterson,  508 

Cramer  v.  United  States,  373 
Cramlington  v.  Evans,            239,  276,  350 

Cranson  v.  Goss  91,  344 

Cravens  v.  Logan,  241,  607 

v.  Gillilan,  547 

Crawford  v.  Branch  Bank,  28 

County  v.    Wilson,  481 

v.  Cully,  142 

v.  Daigh,  128 

v.  Hildebrant,  546 

v.  Penn,  372 

Cregler  v.  Durham,  601 

Creighton  v.  Black,  HO 


CASES   CITED    IN   VOLUME   ONE. 


XX111 


PAGE. 

Cremer's  Estate,  342 

Crescent  City  Bank  v.  Hernandez,        508 

Creswell  v.  Crisp,  279 

v.  Holden,  82,  195,  208,  469 

v.  Lanahan,  515 

Crews  v.  Farmers'  Bank,  327 

Crisfield  v.  Banks,  442 

Crisman  v.  Tuttle,  90 

Crocker  v.  Colwell,  175,  572 

v.  Green,  160 

Crockett  v.  Young,  520 

Cromwell  v.  County  of  Sac,  481 

v.  Tate's  Exr.,  80 

Crook  v.  Jadis,  588 

Crooker  v.  Holmes,  152 

Crope  v.  Overton,  402 

Croskey  v.  Skinner,  286,  292,  298 

Crosman  v.  Fuller,  307 

Cross  v.  Cheshire,  566 

v.  Eowe,  248 

Crossan  v.  May,  171,  172 

Crosthwait  v.  Boss,  562,  578 

Crouch  v.  Credit  Foncier,  83,  468,  469 

v.  Hall,  32 

Crouse  v.  Holman,  377 

Crow  v.  Van  Sickle,  458 

Crowder  v.  Reed,  525 

Crowell  v.  Osborne,  242,  341 

v.  Plant,  142 

Crozer  v.  Chambers,  67 

Crozier  v.  Hodge,  30,  31 

Cruger  v.  Armstrong,  8 

Crum  v.  Boyd,  178 

Crutchley  v.  Clarence,  138,  253,  290,  291, 

524 

v.  Mann,        138,  253,  254,  291 

Culver  v.  Bigelow,  541 

v.  Leony,  522 

Cumberland  College  v.  Ish,  252 

Cummings  v.  Freeman,  106 

v.  Gassett,  103,  229 

v.  Henry,  386 

Cumpston  v.  McNair,  564 

Cundy  v.  Marriott,  332 

Cunningham  v.  Smithson,  177,  569 

v.  Wardwell,  116,  234,  263 

Cureton  v.  Moore,  464 

Curie  v.  Beers,  141 

Currier  v.  Lockwood,  106 

Curry  v.  White,  590 

Curtin  v.  Patten,  400 

Curtis  v.  Bank  of  Somerset,  185 

v.  County  of  Butler,  485 

v.  D.  L.  &  W.  R.  P.,  24 

v.  Gorman,  333 

v.  Hall,  384 

v.  Horn,  147 

v.  Leavitt,  79,  470 

v.  Nat.  Bank,  604 

v.  Rickards,  230 

Gushing  v.  Fifield,  112,  300,  301 

Cushman  v.  Haynes,  134,  135 

v.  Loker,  527 


PAGE. 

Cushman  v.  Welsh,  76,  318 

Cutler  v.  Board  of  Supervisors,  493 

v.  Wright,  31 

Cutner  v.  United  States,  370,  371 

Cuyler  v.  Wenifield,  501 


D. 


Dacosta  v.  Davis, 

18,34 

Dages  v.  Lee, 

406 

Daggett  v.  Daggett, 

71 

v.  Gage, 

117 

Dalbiac  v.  Dalbiac, 

419 

Dale  v.  Pope, 

116 

Dallas  v.  Head, 

439 

Dalrymple  v.  Fraser, 

222 

v.  Whitingham, 

110,  482 

Damerson  v.  Irwin, 

181,  535 

Dana  v.  Norris, 

333 

v.  San  Francisco, 

110,  481 

Dane  v.  Kirkwall, 

380 

Danforth  v.  Evans, 

156 

v.  Schoharie  Tnrnpike  Co.,   82, 

469 

Daniel  v.  Andrews,  118 

Daniel ly  v.  Cabaniss,  488 

Daniels  v.  Gower,  346 

Darby  v.  Boucher,  392 

v.  Cabanne,  386 

Dare  v.  Allen,  464 

Darling  v.  March,  581 

Darnall  v.  Smith,  440 

Darrington  v.  Bank  of  Alabama,         495 

Dart  v.  Sherwood,  223 

Dartmouth  College  v.  Woodward,        467 

Daubuz  v.  Morshead,  376 

Daudistel  v.  Bennighof,  406,  411 

Davega  v.  Moore,  247,  270 

Davenport  Bank  ▼.  Price,  157,  159 

v.  Riley,  178 

v.  Runlett,  575,  580 

v.  Sleight,  288 

&  St.  P.  R.  R.  v.  Rogers,    117 

Davidson  v.  Cooper,  73,  288 

v.  Hill,  307 

v.  Lanier,  25,  39,  297 

v.  Peticolas,  132 

v.  Stanley,  513 

v.  Vorse,  316 

Davies  v.  Jenkins,  440 

v.  Wilkinson,  114 

Davis  v.  Barrington,  224 

v.  Blackwell,  581 

v.  Briggs,  233,  561 

v.  Brown,  307 

v.  Clarke,  234,  261 

v.  Clemson,       17,  20,  21,  25,  37,  43 

v.  Culeman,  20,  44,  96 

v.  Cook,  555 

v.  French,  185,  606 

v.  Fry,  411 

v.  Garr,  240 


XXIV 


CASES    CITED    IN   VOLUME   ONE. 


PAGE. 

Davis  v.  Glenn,  159 

v.  Jones,  88,  89,  150,  349 

v.  Lane,  377 

v.  McAlpine,  172 

v.  Merrill,  560 

v.  Moorfield,  405 

v.  Morgan,  524 

v.  Morton,  51 

v.  Newton,  460 

v.  Richardson,  331,  563 

v.  Smith,  575 

v.  Universalist  Society,  470 

v.  West  Saratoga  Bldg.  Union,  470, 

171 

v.  Willis,  598 

Davison  v.  Robertson,  357,  499,  50S 

Dawes  v.  Jackson,  180,  181,  534,  535 

Dawkes  v.  De  Loraine,  140 

Dawson  v.  Cotton,  215 

Day  v.  Baker,  326 

v.  Boyd,  455 

v.  McAllister,  343 

Deacon  v.  Taylor,  121 

Dean  v.  Carrutli,  276 

v.  De  Lezardi,  85,  90,  92,  99 

of  Rochester  v.  Pierce,  468 


Richmond, 
Deardorff  v.  Foresman, 
Deason  v.  Boyd, 
Deberry  v.  Darnell, 
Decatur  Bank  v.  Spence, 
Deck  v.  Johnson, 
Decker,  Ex  parte, 
Decouche  v.  Savetier, 
Dederick  v.  Barber, 
Deering  v.  Bovle, 

v.  Thorn, 
Deerly  v.  Mazarine, 
De  Forest  v.  Frary, 
De  Gaillon  v.  L'Aigle, 
Dehers  v.  Harriot, 
Deitz  v.  Regnier, 


459 

348 

399 

128 

138,  296 

447 

288 

52 

1(14 

422,  439,  448 

319 

428 

152 

128,  430 

34,  263,  358,  360 

556,  574,  576 


De  Jarnette  v.  De  Giverville,  373 

Dela  Chaumette  v.  Bank  of  England,    35, 
47,  269,  539 
Dela  Courtier  v.  Bellamy,  85,  88,  275,  342 


Delafield  v.  Hand, 

v.  State  of  Illinois 
De  Land  v.  Nat.  Bank, 
Delano  v.  Blake, 
De  la  Vega  v.  Vianna, 
Delagel  v.  Naylor, 
Delius  v.  Cawthorn, 
De  Mautort  v.  Saunders, 
Deming  v.  Bullitt, 

v.  Colt, 
De  Mott  v.  McMullen, 
Den  v.  Clark, 
Dennison  v.  Austin, 
Dennis  v.  Table  Mtn 


Depau  v.  Humphreys, 

Derry  v.  Duchess  of  Mazarine, 


84, 


3D 
494 
528 
398 
51,  52 
42 
190,  499,  532 
262 
78,  215 
551 
445 
383 
202,  211 
Water  Co.,  234, 
263 
42,  43 
42> 


PAGE. 

Des  Arts  v.  Leggett,  337 

Desbrow  v.  Weatherley,  294 

Deshon  v.  Leffler,  148 

Desmond  v.  Norris,  328 

De  Sobry  v.  De  Laistre,  30 

Devaynes  v.  Noble,  587 

Devendorf  v.  W.  Va.  Oil  Co,  182 

Devin  v.  Scott,  3*6,  387 

Devore  v.  Mundy,  233,  246 

I),-  Voss  v.  City  of  Richmond,  485,  49u 

De  Vries  v.  Conkling,  421 

Devries  v.  Shumate,  347 

Dewey  v  Cochran,  :'41 

v.  Reed,  305 

De  Witt  v.  Walton,  182,  215,  218 

De  Wolf  v.  Johnson,  19,  23,  44 

Diamond  v.  Lawrence  County,  83,  481 

Dibrell  v.  Carlisle,  416,  422 

Dickens  v.  Bent,  3,  351 

Dickenson  v.  Dickenson,  61,  599,  601 

Dickerman  v.  Abrams,  442 

Dickerson  v.  Burke,  104,  224 

Dickins  v.  Beal,  16 

Dickinson  v.  Bowes,  17" 

v.  Kdwards,  21,  26.  27,  40,  41, 

45 

v.  Hoomes,  32 

v.  Valpy,  234,  552,  562 

Dickson  v.  Gamble,  241,  497 

v.  Penrose,  585 

v.  Vale  of  Neath  Ry.,  468 

Diercks  v.  Roberts,         139,  161,  295,  296 

Dietrich  v.  Bayhi,  316 

Diggle  v.  London  and  B.  Ry.,  82,  467 

Dill  v.  Bo  wen,  401 

v.  White,  104,  222 

Dillard  v.  Evans,  127 

v.  Manhattan  Life  Ins.  Co.,     372 

I)i  1  lave  v.  Parks,  433 

Dilley  v.  Van  Wie,  HI 

Dills  v.  Trimmer,  74 

Dinsmore   v.  Duncan,  84,  114,  115,  121, 

253,  291,  300,  494 

Dip  Jock  v.  Blackburn,  538 

Disher  v.  Disher,  337 

Ditts  v.  Lonsdale,  555 

Dixon  Company  v.  Field,  492 

\.  Nuttall,  147,  lot> 

v.  Ramsay,  605 

Dively  v.  City  of  Cedar  Falls,  482 

Dob  v.  Halsey,  574 

Dobbins  v.  Parker,  307 

Dodd  v.  Bishop,     '  190,  533 

v.  Denny,  159 

v.  Dody,  90 

Dodds  v.  Wilson,  379 

Dodge  v.  County'  of  Platte,  487,  491 

v.  Emerson,  134 

Dodson  v.  Harris,  343 

Doherty  v.  Perry,  279,  313 

Dohoney  v.  Dohoney,  89,  344 

Dole  v.  Weeks,  245 

Dollfas  v.  Frosch,  30,  31,  49,  504 


CASES    CITED    IN    VOLUME    ONE. 


XXV 


Dollner  v.  Snow, 
Dolman  v.  Cook, 

v.  Orchard, 
Don  v.  Lippman, 
Donegan  v.  Wood, 
Doniey  v.  Tindall, 
Donnelly  v.  Corbett, 
Doolittle  v.  Lyman, 
Dorr  v.  Davis, 
Dorrance  v.  Stewart, 
Dorris  v.  Grace, 
Doty  v.  Bates, 

v.  Mitchell, 
Doubleday  v.  Kress, 

v.  Muskett, 
Doud  v.  Wright, 
Dougal  v.  Cowles, 
Douglas  v.  Oldham, 

v.  Wolf, 
Douglass  v.  Fraser, 

v.  Howland, 
v.  Mayor,  &c. 
City, 
Douglass  v.  Scott, 

v.  Wilkeson, 
Dover  v.  Maesiaer, 
Dow  v.  Moore, 
v.  Rowell, 
v.  Russell, 
v.  Spenny, 
v.  Spurney, 
v.  Updike, 
Down  v.  Hailing, 

v.  Hallington, 
Downer  v.  Chesebrough 

v.  Read, 
Downes  v.  Church, 
Downing  v   Backenstoe: 
Downs  v.  Webster, 
Dows  v.  Perrin, 
D^yle  v.  Orr, 
Drake  v.  Elwyn, 

v.  Flewellen, 
v.  Hays, 
v.  Mark  I  e, 
v.  Rogers, 
Draper  v.  Bissel, 

v.  Fletcher, 
v.  Jackson, 
v.  Mass.  Steam 
v.  Pattani, 
v.  Rice, 
v.  Wood, 
Draughon  v.  Ryan, 
Drayton  v.  Dale, 

v.  Warne, 
Drennen  v.  House, 
Driggs  v.  Abbott, 
Drown  v.  Smith, 
Dubois  v.  Mason, 
D u hose  v.  Wheddon, 
Ducarry  v.  Gill, 
Duconge  v.  Forgay, 


PAGE 

412 

IS,  23,  39,  44 

178,  595 

25,  26,  29,  51,  52 

16,  31,  352 

131 

57 

40 

241 

120 

327 

177,  554,  570 

434 

511 

552 

330 

177,  568 

51,78 

238 

604 

275 

,  of  Virginia 

484 

284,  285 

227,  229,  273 

331 

201,  566 

37 

47 

180 

525,  526 

316 

159 

588 

,  53 

243 

359 

3,  266.  272 

139 

513 

413 

565 

194,  220 

452 

108,  115 

90,  91,  92 

592 

114 

235,  465 

Heating  Co.,   188 

61 

504 

297 

421 

364,  394,  426 

191 

550 

464 

117 

31 

393 

178,  501,  532,  535  I 

510 


PAGE. 

Ducommun  v.  Hysinger, 

252 

Dmilev  v.  Littlefield, 

555 

v.  Wills. 

328 

Dugan  v.  Campbell, 

127,  275 

v.  United  States, 

242,  497 

Duliammel  v.  Pickering, 

376 

Dunavan  v.  Flynn, 

334 

Dunbar  v.  Warden, 

72 

Duncan  v.  Clark, 

577,  586 

v.  Course, 

352 

v.  Duncan, 

79,  80 

v.  Hodges, 

288 

v.  Louisville, 

312 

v.  Lowndes, 

556 

v.  Maryland  Sav 

Bank, 

266,  273, 
475 

v.  McCullough, 

94 

Dundas  v.  Bowler, 

37,  42,  47 

Dundass  v.  Gallagher, 

582,  599 

Dunham  v.  Clogg, 

253 

,  290,  291 

Dun  lap  v.  Hales, 

393,  398 

v.  Newman, 

610 

Dunn  v.  Adams, 

30,  32,  37 

v.  Barnes, 

124 

v.  Horn  beck, 

456,  459 

v.  Raynor, 

454 

v.  Weston, 

13 

Dunne  v.  Deery, 

604 

Dunning  v.  Pike, 

412 

Dunn's  Case, 

221 

Dunsford  v.  Curlewis, 

93 

Dunton  v.  Brown, 

400 

Dupont  v.  Mount  Pleasant  Ferry  Co.,  239 

Duran  v.  Aver, 

576 

Durant  v.  Iowa  County, 

83 

481,  489 

Durfee  v.  Morris, 

238,  239 

Durgin  v.  Bartol, 

229 

230,  270 

Durkin  v.  Cranston, 

359 

Dusenbury  v.  Ellis, 

190 

Dutch  v.  Boyd, 

240 

Dutchess  Co.  Ins.  v.  Hachrield, 

84,  266, 

289,  481 

Cotton     Man 

lfactory    v. 

Davis, 

154 

Dutton  v.  Marsh,              81, 

197,  208 

v.  Pailaret, 

125 

Duvall  v.  Craig, 

183 

Dwight  v.  Newell, 

610 

Dyer  v.  Burnham, 

216 

v.  Covington  Township, 

110,  141, 

543 

v.  Gill, 

75 

v.  Horner, 

273 

E. 

Eadie  v.  Ashbaugh, 

525 

Earle  v.  Reed, 

393 

Early  v.  McCart, 

144,  311 

v.  Reed, 

583 

Easley  v.  Christy, 

571 

East  India  Co.  v.  Hensle\ 

502,  539 

CASES    CITED    IX    VOLUME    ONE. 


East  India  Co.  v.  Tritton,  542,  546 

London  Water  Co.  v.  Bailey,        82, 

467,  468 


River  Nat.  Hank  v. 

Gove, 

521 

Term,  [ron  Mfg.  C< 

.  v. 

Gas 

kell,  185 

Union  Township  v. 

Bj 

an, 

110,  481 

Easter  v.  Boyd, 

317 

v.  Minard, 

346 

Easterly  v.  <  roodwin, 

E 

Eastern  Co.  Ry.  v.  Hawkes, 

4/  i 

R.  R.  Co.  v.  Benedict, 

'216,  239 

Eastman  v.  Cooper, 

587,  580 

Easlon  v.  Hyde, 

120 

v.  McAllister, 

100,  157 

Eastwood  v.  Bain, 

201, 

212,  534 

Eaton  v.  Bell, 

211,  611 

v.  Berlin, 

110,  523 

v.  Eaton, 

378,  382 

v.  Emerson, 

161 

v.  Taylor, 

592 

Exchange  Nat.  Bank  v 

Thir 

Bank, 

213 

Echols  v.  Grattan, 

126 

Eddy  v.  Bond, 

104,  245 

Edeck  v.  Banner, 

322 

Edgerly  v.  .Shaw, 

397 

Edgerton  v.  Edgerton, 

277 

Ed  is  v.  Bury, 

101,  263 

Edison  v.  Frazier, 

243 

Edmunds  v.  Bushell,       178, 

212 

513,  545 

Edwards  v.  Davis, 

426 

v.  Dick, 

101 

Ex  parte, 

526 

v.  Ramsey, 

111 

v.  Thomas, 

513,  546 

Effinger  v.  Richards, 

302 

Egberts  v.  Wood, 

597 

Ege  v.  Kyle, 

73 

Elile  v.  Chittenango  Bank, 

126 

Ehrgott  v.  Bridge  Manu 

factory, 

516 

Ehrichs  v.  De  Mill, 

142 

Einer  v.  Beste, 

56 

Ekins  v.  East  India  Co., 

42 

Elderkin  v.  Elderkin, 

46 

Eld  red  v.  Ma  Hoy, 

114 

Ellars  v.  Mossbarger, 

383 

Ellett  v.  Britton, 

314 

Elliot  v.  Abbott, 

248,  519 

Elliott  v.  Chestnut, 

253,  291 

v.  Cooper, 

69 

v.  Deason, 

254 

291,  308 

v.  Dudley, 

57-3,  576 

v.  luce, 

380 

v.  Levings, 

29o 

Elliott's  Case, 

136,  139 

Ellis  v.  Commercial  Bank, 

49,50 

v.  Ellis, 

114 

Ex  parte, 

599 

v.  Francis, 

502 

v.  Mason, 

104,311 

v.  McLemoor, 

236,  237 

v.  Pulsifer, 

187 

Ellis  v.  Wheeler, 
Ellison  v.  Collingridge, 
Ellston  v.  Deacon, 
El  rod  v.  Myers, 
Elston  v.  Jasper, 
El  well  v.  Dodge, 
Ely  v.  Clute, 
Emanuel  v   Roberts, 
Emblin  v.  Dartnell, 
Emerson  v.  Harimon, 


PAGE. 

245 

104 

578 

392 

377 

212,  515,  516 

104,  222 

94 

169 

577 


v.  Providence   Hat  Manuf. 
Co.,  188,  502 

Emery  v.  Hobson,  329 

v.  Inhabitants  of  Mariaville,    110 
v.  Lord,  419 

v.  Mariaville,  481 

v.  Vinall,  89 

Emlv,  Ex  parte,  569 

v.  Lye,  177,  569 

Emmanuel  v.  Roberts,  92 

Emmons  v.  Meeker,  87,  293 

Engler  v.  Ellis,  27,  31,  41 

Enloe  v.  Hall,  181,  535 

Ensley  v.  United  States,  370,  371 

Ensminger  v.  Marvin,  175,  555,  576 

Enthoven  v.  Hoyle,  228.  288 

Entz  v.  Mills,     '  514 

Episcopal  Charitable  Soc.  v.  Episco- 
pal Church,  183,  514,  526 
Erie,  &c,  Dispatch  v.  St.  Louis  Cot- 
ton Co ,  107 
Ernst  v.  Steckman,  147,  152 
Erskine  v.  Murray,  69 
Ervin  v.  Lancaster,  225 
Erwin  v.  Carroll.  185,  604,  605 
v.  Downes,  403,  426 
Esdaile  v.  La  Nauze,  503 
Eshelman  v.  Shuman,  460 
Esley  v.  People,  364 
Espy  v.  Bank  of  Cincinnati,  521 
Essex  Co.  v.  Edwards,  67 
Estabrook  v.  Earle,  415 
Estes  v.  Kyle,  52 
Etheridge  v.  Binney,  552 
Evans  v.  Anderson,  18,  19,  20,  34,  35,  39, 

95 

v.  Cramlington,  239 

v.  Drummoud,  600 

v.  Secrest,  457,  459 

v.  Steel,  293 

v.  Underwood,  115,  156 

v.  Wells,  179 

Evansville  R.  R.  v.  Dunn,  116 

Everett  v.  United -States,  519,  520 

v.  Vendryes,  28,  36,  38.  47 

Everson  v.  Carpenter,  392,  .'-197 

Evertson  v.  Nat.  Bank,    83,  110,  227.  228 

v.  Nat.  Bank  of  Newport,        84 

Ewer  v.  Meyrick,  154 

Ewing  v.  Clark,  319 

Exchange  Bank  v.  Montealh,  546 

Exon  v.  Russell,  165,  168,  169.  304 


CASES    CITED    IN    VOLUME   ONE. 


XXV11 


PAGE. 

Failing  v.  Clemmer,  160 

Fairchild  v.  Ogdensburgh  R.  R.,  110,  234. 

263 
Fairfield  v.  Adams,  241 

Fairley  v.  Roch,  365 

Fairlie  v.  Fenton,  201 

Faith  v.  Richmond,  176,  565 

Faitliome  v.  Blaguire,  427 

Falconer  v.  Buffalo,  &c,  R.  R.  Co.,      487 
Faler  v.  Jordan,  558,  577 

Falkenburgli  v.  Clark,  102,  300 

Fall  River  Nat.  Bank  v.  BufEngton,    69, 

70 

Fallis  v.  Howarth,  271 

Fancourt  v.  Thorne,  306,  312 

Fanning  v.  Consequa,  22,  24 

v.  Russell,  333 

Fanshawe  v.  Peets,  91,  100,  302 

Fant  v.  Miller,  20,  35,  39,  54,  321 

Farmers'  Bank  v.  Butchers'  Bank,       521 

v.  Ewing,        61,  300,  307 

v.  Maxwell,  473 

&c,  Bank  v.  Baldwin,  473 

v.  Green,  602 

v.  Horsev,      253,  286, 

291 

v.  Trov  Citv  Bank, 

184,  519 

and  Mfrs.  Bank  v.  Haight,       78 

Mechanics'  B'k  v.  Day,     241 

v.Smith,  56 

v.  White,  90 

Farmington  Savings  Bank  v.  Fall,  238, 

476 
Farnam  v.  Brooks,  381,  3S2 

Farnhi  v.  Ramsee,  31,  95 

Farnsworth  v.  Drake,  247,  249 

v.  Rowe,  71 

Farnum  v.  Virgin,  129 

Farquhar  v.  Fidelity  Ins.  Co.,  134,  317, 

319 

Farr  v.  Sumner,  401 

v.  Wright,  413 

Farrar  v.  Deflinne,  601 

v.  Gilman,  520 

v.  Peterson,  528 

Farrington  v.  Gallaway,  225 

Fash  v.  Ross,  215 

Farwell  v.  Kenneth,  127 

v.  Meyer,  292 

Fassin  v.  Hubbard,  596 

Faulder  v.  Silk,  381,  383 

Faull  v.  Tinsman,  113 

Fawsett  v.  National  Life  Ins.  Co.,        266 

Faxon  v.  Dyson,  605 

Fay  v.  Noble,  471,  514 

Fayle  v.  Bird.  165,  169 

Fearing  v.  Clark,  347 

Fearn  v.  Filica,  540 

Peeter  v.  Heath,  189,  531 


PAGE. 

Felch  v.  Bugbee,  57 

Fellows  v.  Wyman,  596 
Fells  Point  Savings  Inst.  v.  Weedon,  106, 

115 

Felton  v.  Reid,  424 

Feltus  v.  Blanchin,  407 

Fenn  v.  Harrison,  502,  506,  525,  539 

v.  Holmes,  412 

Fenton  v.  Goundry,  170 

v.  Hallo  way,  385 

v.  White,  393 

Fentum  v.  Pococke,  226 

Ferguson  v.  Childress,  283 

v.  Hogan,  130 

v.  Reed,  421 

Ferner  v.  Williams,  171 

Fernon  v.  Farmer,  266,  273 

Ferris  v.  Bond,  174,  221 

v.  Saxton,  14 

v.  Thaw,  516,  565 

Ferry  v.  Taylor,  526 

Fesenmayer  v.  Adcock,  106 

Fetron  v.  Wiseman,  390 

Fetters  v.  Muncie  Nat.  Bank,  286 

Field  v.  Sowle,  441 

v.  Wood,  92 

v.  Woods,  85 

Fifield  v.  Close,  331 

Filley  v.  Angell,  69 

v.  Phelps,  567,  589 

Findlay  v.  Hale,  20 

v.  Hall,  44 

Finn  v.  Rose,  445 

Finnegan  v.  Lee,  84,  494 

Finney  v.  Fairhaven  Ins.  Co.,  528 

v.  Shirley,  105,  106 

Firbank  v.  Bell,  134,  320 

Firemen  Ins.  Co.  v.  Bennett,  581 

First  Nat.  Bank   of  Chittenango   v. 

Morgan,  558 

First  Nat.  Bank  v.  Ballou,  525 

v.  Breese,  315 

v.  Bynum,  135,  149,  317, 
319 

v.  Dougherty,  326 

v.  Fowler,  222,  232 

v.  Gay,        180,  318,  501, 
504,  525 

v.  Gish,  368 

v.  Gray,  312 

v.  Hall,  183,  240 

v.  Hogan,  522 

v.  Hurlburt,  436 

v.  Jacobs,  317 

v.  Larser,  317 

v.  Lierman,  382 

v.  Marlow,  318 

v.  Morgan,  585,  586 

v.  Morris,  27,  41 

v.  Mt.  Tabor,  110,  243 

v.  Pierson,  473 

v.  Price,  158 

v.  Strang,  248,  341 


XXV111 


CASES   CITED    IN    VOLUME   ONE. 


PAGE. 

PAGE. 

I'in  Nat.  Bank  v.  Whitney,                -K> 

Flint  v.  Day, 

67 

of  Dubuque  v.  Car- 

Ex parte, 

542 

penter,                                               5S2 

v.  Flint, 

235- 

First  Nat.   Bank   of  Fort    Dodge   v. 

Foard  v.  Johnson, 

95. 

Breese,                                               582 

Foden  v.  Sharp, 

170' 

First  Nat.  Bank  of  Houghton  v.  Rob- 

Fogg v.  Virgin, 

191 

ert,                                                          70 

Foglesang  v.  Wickard, 

333 

First  Nat.  Bank  of  Mankato  v.  Par- 

Folger  v.  Chase, 

183, 

184,  519 

sons,                                                     592 

Fonda  v.  Van  Home, 

390 

First     Nat.     Bank    of   Michigan    v. 

Font  v.  Cathcart, 

392 

Green,                                        30,37,47 

Fontaine  v.  Gunter, 

285 

First    Nat.     Bank    of   Muscatine    v. 

Foot  v.  Sabin, 

575, 

581,  583 

Krance,                                                    316 

Forbes  v.  Espy, 

249 

First  Nat.  Bank  of  North  Benning- 

v. Marshall, 

565 

ton  v.  Town  of  Dorset.                        491 

Force  v.  City  of  Elizabeth, 

83,  480 

First  Nat.  Bank  of  New  York  v.  Mor- 

v. Craig, 

75,  SO 

ris,                                                          21 

Forcheimer  v.  Holly, 

331 

Fish  v.  Brown,                                           78 

Ford  v.  Buckeye  Ins.  Co. 

34r 

Fisher  v.  Bradford,                                  337 

v.  Mitchell, 

108,  127 

v.  Dennis,                                     294 

v.  Phillips, 

396 

v.  Eillis,                             239,  240 

v.  Williams, 

217 

v.  Evans,                                       95 

Fordyce  v.  Nelson, 

24 

v.  Kintz,                                    373 

Foreman  v.  Beckwith, 

171 

v.  Leslie,                                       106 

Forrest  v.  Robinson, 

444 

v.  Mowbray,                                 392 

Forest  v.  Warrington, 

460- 

v.Otis,                                             42 

Forster  v.  Fuller, 

186,  610 

v.  Pomfret,                                 229 

v.  Mackreth, 

92, 

507,  562 

Fisk  v.  Brackett,                                  49,  53 

Forsyth  v.  Baxter, 

31 

v.  City  of  Kenosha,       489,  491,  493 

v.  Day, 

499,  512 

Fiske  v.  Eldridge,                                  194 

Forsythe  v.  Bonta, 

525 

v.  Foster,                                          57 

Fort  v.  Delee, 

318 

v.  Witt,                                           134 

Foy  v.  Blackstone, 

348 

Fishmongers'  Co.  v.  Robertson,      82,  468 

Foss  v.  Nutting, 

48,  53 

Fitch  v.  Jones,                                  91,  302 

Foster  v.  Andrews, 

555 

v.  Lawton,                                     199 

v.  Conger, 

414 

v.  Reiner,                 18,  26,  27,  35,  42 

v.  Floyd, 

73 

Fitchburg  Sav.  Bank  v.  Rice,                306 

v.  Hall, 

177,  570 

Fitts  v.  Mall,                                   395,  396 

v.  Holley, 

328 

Fitzgerald  v.  Reed,                        377,  380 

v.  MacKinnon, 

284 

Fitzharris  v.  Leggett,                             135 

v.  Ohio,  &c,  Mining  Co., 

522 

Fitzhugh  v.  Wilcox,                      378,  380 

v.  Pearson, 

503,  507 

Flagg  v.  Baldwin,                                      17 

v.  Shattuck, 

247 

Flanagan  v.  Meyer,                           88,  344 

Fouke  v.  Fleming, 

30 

Flanders  v.  Abbey,                                  440 

Fountain  v.  Anderson, 

612 

Flato  v.  Mulhall,                               31.  32 

Four  Mile.  V.  R.  R.  v.  B< 

riley, 

114,  155 

Flax,  <&c,  Manuf.  Co.  v.  Ballentine,    547 

Fourth  Nat.  Bank  v.  St. 

Louis 

Cot- 

Fleckner  v.  Bank  of  United  States,     184, 

ton  Exp., 

107 

311,  499,  501,  519 

Fourth  School  District  v. 

Wood 

82,  480 

Fleming  v.  Burge,                                    105 

Fowler  v.  Atkinson, 

194,  210 

v.  Nail,                                       127 

v.  Richardson, 

590 

Flemming  v.  Prescott,                             556 

Fox  v.  Clifton, 

552,  554 

Fletcher  v.  Anderson,                             594 

v.  Drake, 

181 

534,  535 

v.  Blodgett,                      300,  305 

v.  Frith, 

561 

v.  Dyte,                                    223 

v.  Reil, 

72. 

v.  Schaumberg,                         242 

v.  Shipman, 

110,  481 

v.  Spaulding,                              52 

Fox  worth  v.  Magee, 

422 

v.  Thompson,                            319 

v.  Bullock, 

422 

Floral  v.  Merchant,                                 511 

Fralick  v.  Norton. 

113,  135 

Flournoy  v.  Healy,                                  124 

Frank  v.  Lilienfeld, 

295, 

417,  439 

Flowers  v.  Bitting,                             65,  70 

v.  Wessels,            115, 

155,  311 

Floyd  v.  Miller,                                      597 

Francis  v.  Ins.  Co., 

30 

Flight  v.  Maclean,                                    232 

v.  Ross, 

420,  435 

Flinn  v.  Powers,                                       399 

Frank  land  v.  M'Gusty, 

580 

CASES    CITED    IX    VOLUME   ONE. 


XXIX 


PAGE. 

Franklin  v.  Beatty,  43-4 

v.  March,  103 

Sav.  Inst.  v.  Eeed,  161,  2S4,  301, 

303 

Frasier  v.  Massey,  394 

Frazee  v.  McFarland,  409,  436 

Frazer  v.  D'Invilliers,  84,  494 

Frazier  v.  Fredericks,  39,  48 

v.  Gains,  138,  295,  296 

v.  Trow  Printing  Co.,  92 

v.  Warfield,  25,  29 

Frecking  v.  Holland,  420,  423,  441 

Frederick  v.  Colton,  270 

Freeman  v.  Ellison,  98 

v.  Matlock,  114 

v.  Otis,  180,  181,  534 

v.  Ross,  159 

Freeman's  Bank  v.  Perkins,  352 

v.  Ruckman,  46,  171 

Freeraoult  v.  Dedire,  30 

Freese  v.  Brownell,   20,  24,  25,  26,  28,  29, 

40,  164,  342 

French  v.  Hickox,  384,  385 

v.  Price,  178 

v.  Turner,  68 

Frere,  Ex  parte,  542 

Frennd    v.   Imp.    and  Traders'  Nat. 

Bank,  334 

Frevall  v.  Fitch,  73,  74 

Frey  v.  Kirk,  55,  58 

Fried  lander  v.  Cornell,  508 

Friedman  v.  Wagner,  272 

Friend  v.  Duryee,  562 

Frierson  v.  Galbrath,  29,  40 

Frink  v.  Thompson,  328 

Fritsch  v.  Heisler,  88,  91,  344 

Frontin  v.  Small,  178 

Frost  v.  Wood,  503 

Fry  v.  Dudley,  126 

v.  Hamner,  411 

v.  Rousseau,  128 

Frye  v.  Tucker,  470,  472,  516 

Fuller  v.  Bean,  39 

v.  Dingman,  170 

v.  Hooper,  198,  204,  219 

v.  Scott,  298 

v.  Smith,  357 

Fullerton  v.  Sturges,  73,  87,  138,  148,  286, 

292,  293,  295,  544 

Fulton  v.  Central  Bank,  593 

Fultz  v.  Walters,  106 

Funderburk  v.  Gcrham,  604,  605 

Funk  v.  Lawson,  335,  341 

Furber  v.  Caverly,  103 

Furniss  v.  Gilchrist,  471 

Furtado  v.  Rogers,  371 

Furze  v.  Sharswood,  572 


G. 

Gaar  v.  Louisville  Banking  Co.,   134,  316 
Gadd  v.  Houghton,  211 


Gaddis  v.  Richland  Countv, 
Gaff  v.  Theis, 
Gage  v.  Sharp, 
Gaines  v.  Dorsett, 
v.  Shelton, 


PAGE. 

492 
195 
245 
157 
320 

Gale  v.  Miller,  340,  342,  573,  594 

Galena  Ins.  Co.  v.  Kupfer,  125 

Gallerv  v.  Nat.  Exch.  Bank,  518 

Galpin  v.  Hard,  94 

Galway  v.  Matthew,  222,  585 

Gallagher  v.  Nichols,  4 

Gallaudet  v.  Sykes,  20,  21.  49 

Gamble  v.  Grimes,  577 

v.  Hatton,  127 

Gammon  v.  Schmoll,  170 

Gano  v.  Samuel,  581 

Gans  v.  Frank,  52 

Gansevoort  v.  Williams,        574,  575,  579 

Gardner  v.  Baillie,  503 

v.  Barger,  152 

v.  Gardner,  385,  387,  443 

v.  Lewis,  30 

v.  Oliver  Lee's  Bank  ,  57 

v.  Walsh,  223 

Gardom,  Ex  parte,  550,  551 

Garland  v.  Jacomb,  562 

v.  Lane,  324,  327 

v.  Pamplin,  440 

v.  Reynolds,  239 

v.  Scott,  106 

Gamier  v.  Poydras,  33 

Garner  v.  Sheriff,  450 

Garnett  v.  Woodcock,  169 

Garr  v.  Stokes,  51 

Garrard  v.  Haddan,  296,  297 

Garretsie  v.  Van  Ness,  74 

Garrison  v.  Combs,  82,  213,  472 

Carton  v.  Union  City  Nat.  Bank,  241 

Garver  v.  Pontious,  111,  315- 

Garvin  v.  Wiswell,  110,  246,  271 

Gary  v.  Johnson,  463 

Gaters  v.  Madely,  456,  464 

Gates  v.  Brower,  217,  456 

Gatewood  v.  Bryan,  414 

Gatton  v.  Dimmitt,  523 

(Tatty  v.  Fry,  92,  94 

G;uise  v.  City  of  Clarksville,  482 

Gavin  v.  Burton,  396 

Gay  v.  Johnson,  174,  566,  568 

v.  Kingsley,  450 

v.  Lander,  232 

v.  Rainey,  20,  21 

Gaylord  v.  Van  Loan,  159 

Gaytes  v.  Hibbard,  154,  236 

Gazoway  v.  Moore,  116,  139 

Geary  v.  Physic,  61 

Gelpcke  v.  City  of  Dubuque,    83,  84,  110, 

480,  489,  491 

George  v.  Cutting,  418 

v.  Stevens,  412 

v.  Surrey,  64,  70 

Geortner  v.  Trustees  of  Canajoharie,    596 

Gerard  v.  La  Coste,  273 


CASES   CITED    IN    VOLUME    ONE. 


PAGE. 

Gerber  v.  Smart.  220 

German  Congregation  v.  Stegner,  472,  474 

Nat.  Bank  v.  Studley,  507 

Mut.  Ins.  Co.  v.  Franck,  154 

Germania  Bank  v.  Distler,  90 

Gerrish  v.  Glint's,  301 

Gibb  v.  Mather,  168,169 

Gibbs  v.  Fremont,  17,28,  38,  40,  54 

v.  Howard,  55 

v.  Merrill,  402 

Gibson  v.  Hibbard,  327 

v.  Hunter,  249,  250 

v.  Irbv,  611 

v.  Minet,                    184,  227,  249 

v.  Soper,  377,  383 

Giddings  v.  Giddings,  340,  530 

Gidley  v.  Palnierstone,  180,  534 

Gilbert  v.  Dent,  528 

v.  Nantucket  Bank,  245 

v.  Vachon,  344 

Gilchrist  v.  Little  Rock,  486 

Giles  v.  Bourne,  85,  88,  89,  342 

v.  Mauldin,  80 

Gill  v.  Cook,  466 

Gillam  v.  Bovnton,  431 

Gillaspie  v.  Kelley,        166,  172,  285,  294 

Gillespie  v.  Brooks,  79 

v.  Mather,  151 

Gillet  v.  New  Market  Sav.  Bank,         188 

Gillig  v.  Lake  Bigler  R.  R.  Co.,  198,  204 

Gillilan  v.  Myers,  105 

Gilmau  v.  Horsley,  607 

v.  Lockwood,  58 

Gilpin  v.  Marley,  98 

Ginchard  v.  Morgan,  513 

Giovauovich  v.  Citizens'  Bank,  545 

Gist  v.  Alexander,  124 

v.  Drakely,  75 

v.  Mason,  371 

Glass  v.  Pullen,  124 

Glasscock  v.  Smith,  597 

Glenn  v.  Caldwell,  232 

v.  Humphreys,  57 

v.  Porter,  295 

v.  Sims.  233 

Gliddon  v.  McKinstry,  141,  142 

Gliddons  v.  Harrison,  116 

I  rlossop  v.  Jacob,  98 

Glover  v.  Robbins,  125 

Glvde  v.  Keister,  406 

Glyn  v.  Baker,  73,  84 

Goad  v.  Hart,  544 

Goddard  v.  Cutts,  116,  346 

v.  Pratt,  598 

Goddin  v.  Shipley,  24,  30,  49 

Godfrey  v.  Coulman,  351 

v.  Turnbull,  601 

Goldman  v.  Blum,  319 

Goldsmid  v.  Hampton,  62,  287 

Goldstone  v.  Tovey,  454 

Gompertz  v.  Bartlett,  353 

Good  v.  Martin,  68,  98 

Goodall  v.  McAdam,  448 


Goode  v.  Harrison, 
Good  ell  v.  Harrington, 
Goodenow  v.  Curtis, 
Goodfellow  v.  Landis, 
Goodhue  v.  Barnwell, 
Gooding  v.  Varn, 
Goodloe  v.  Taylor, 
( toodman  v.  Eastman, 
v.  Fleming, 
v.  Harvey, 
v.  M  links, 
v.  Simonds, 


PAGE. 

391,  401 
383 
116 
504,  505 
411 
370 
155 
297 
272 
588 
35,  51,  52 
87,  283,  293 


Goodnow  v.  Commissioners  of  Ram- 

sev  County,  486 

Goodnow  v.  Hill,  422 
Goodrich  v.  Reynolds,  212,  364,  470,  473 

v.  Williams,  23,  45 

Goodridge  v.  Ross,  399 

Goodsell  v.  Benson,  48 

v.  Myers,  392,  396 

Goodson  v.  Johnson,  349 
Goodspeed  v.  South  Bend,  &c,  Plow 

Co.,  590 

Goodwin  v.  Nickerson,  308 

Gordon  v.  Casey,  117,  156 

v.  Ellis,  575 

v.  Manning,  413 

v.  Montgomery,  172 

v.  Parker,  120,  121 

v.  Preston,  158 

v.  Rundlett,  151 

Gore  v.  Gibson,  385,  386 

Gorgier  v.  Mieville,  84 

Gorham  v.  Thompson,  601 

Goshen  Turnpike  v.  Hurtin,         154,  266 

Gospel  v.  Wheeler,  370 

Goys  v.  Nelson,  153 

v.  Whitehead,  297 

v.  Whitney,  90 

Gothrupt  v.  Williamson,  138 

Gougli  v.  Findon,  337 

v.  Staats,  94,  159 

Gould  v.  Combs,  106 

v.  Norfolk  Lead  Co.,  504,  505,  509 

v.  Segee,  338 

v.  Town  of  Sterling,     83,  480,  489 

Goulding  v.  Davidson,  424 

Ex  parte,  573,  579 

Goupy  v.  Harden,  178,  179,  203,  220,  536 

Gourdin  v.  Commander,  255,  289 

Govan  v.  Moore,  453 

Governor  v.  Daily,  499 

Grace  v.  Hale,  389 

v.  Hannah,  46,  48,  610 

Graeff  v.  Hitchman,  571 

Grafton  Bank  v.  Flanders,  190,  533 

v.  Moore,  352 

Graham  v.  Adams,  120 

v.  Campbell,  178 

v.  Castor,  381 

Ex  parte,  226 

v.  Hope,  601 

v.  Merrill,  372 


CASES    CITED    IN    VOLUME   ONE. 


XXXI 


PAGE. 

PAGE. 

Graham  v.  Thayer, 

413,  446 

Greenwade  v.  Greenwade, 

31 

v.  United  States  Savings  In- 

Greer v.  George, 

281 

stitution, 

514 

v.  Perkins, 

90,  100 

Grainer  v.  Joder, 

294 

Gregg  v.  Fisher, 

558,  585 

Grand  Chute  v.  Winegar, 

489 

v.  Johnson, 

273 

Lodge  v.  Waddill, 

476 

v.  Union  Co.  Bank, 

106 

Rapids,  &c.  Railroad  Co.  v. 

Gregory  v.  Fraser, 

331, 

385,  387 

Sanders, 

83,  468,  481 

v.  King, 

156 

Grant  v.  Brotherton, 

139,  297 

v.  Leigh, 

184, 

604,  605 

v.  Burleson, 

120 

v.  Pau-1, 

429 

v.  Connecticut  Mutual  Ins.  Co.,  328 

v.  Pierce, 

429 

v.  Cropsey, 

520 

v.  Van  Voorst, 

406 

v.  Da  Costa, 

275,  276 

Grey  v.  Cooper, 

394 

v.  Hawkes, 

585 

Griffin  v.  Ragan, 

421 

v.  Healey, 

42,  55 

v.  Ranney, 

330 

v.  Nay  lor, 

262 

v.  Rice, 

168 

v.  Thompson, 

382 

v.  Weatherby, 

143, 

322,  351 

v.  Vaughan,         243,  247 

Griffith  v.  Clark, 

410 

v.  Wood, 

112,  156 

v.  Cox, 

97 

Graul  v.  Strutzel, 

505 

v.  Hanks, 

129 

Graves  v.  Clark, 

161 

Griggs  v.  Howe, 

283, 

295,  296 

v.  Dash, 

38 

Griinison  v.  Russell, 

113 

v.  Kellenberger, 

554 

Grimm  v.  Warner, 

337 

v.  Merry, 

591,  600,  603 

Grimshaw  v.  Bender, 

If 

,51,  352 

Gray  v.  Bovvden, 

71 

Grinneil  v.  Baxter, 

116,  307 

v.  Brown, 

97 

Grist  v.  Backhouse, 

238 

v.  Donahoe, 

127 

Griswold  v.  Hepburn, 

122 

v.  Lessington, 

401 

v.  Waddington, 

371,  373 

v.  Milner, 

260,  262 

Grosvenor  v.  Lloyd, 

600 

v.  Ward, 

578 

Grout  v.  Enthoven, 

586,  587 

v.  Wood, 

92 

Grove  v.  Neville, 

395 

v.  Worden, 

120 

Groves  v.  Stephenson, 

104,  222 

Gray's  Estate, 

466 

Grubb  v.  Cottrell, 

588 

Great  Falls  Bank  v.  Fannington,    40,  69, 

Grubbs  v.  Collins, 

406 

204,  547 

Grutacun  v.  Woulliuse, 

135,  310 

Greathead  v.  Walton,  17, 

25,  37,  47,  89, 

Guild  v.  Belcher, 

577 

91,  150 

Guilfort  v.  Parish  of  Ascension, 

110 

Great  Western  Ins.  Co.  v. 

Thaver,        472 

Gnion  v.  Doherty, 

443 

Greele  v.  Parker, 

111 

Gulick  v.  Gulick, 

589 

Green  v.  Austin, 

135 

v.  Loder, 

51 

v.  Carson, 

463 

Guptill  v.  Home, 

418 

v.  Davies, 

109,  229 

Gurney  v.  Evans, 

178, 

212,  552 

v.  Deakin, 

554,  575,  586 

Gushee  v.  Eddy, 

129 

v.  Drebillis, 

159 

Guthrie  v.  Murphy, 

392 

v.  Hoi  way, 

328,  330 

Guyman  v.  Burlingame, 

156 

v.  Kennedy, 

283 

Gwinn  v.  Roberts, 

129 

v.  Lowry, 

326 

v.  Sarmiento, 

39,  55,  57 

v.  Shepherd, 

277 

H. 

v.  Shipworth, 

61 

v.  Skeel, 

182,  215,  218 

Habricht  v.  Alexander, 

371 

v.  State, 

496 

Hackettstown  Bank  v.  Rea, 

4,  27 

,  45,  475 

Greencaux  v.  Wheeler, 

271 

Hackney  v.  Jones, 

266,  273 

Greenfield  Bank  v.  Craft, 

510 

Haddock  v.  Crocheron, 

590 

v.  Crofts, 

525,  526 

v.  Woods, 

125 

Savings  Bank  v.  Stowell,  296, 
297 
Greenhow  v.  Boyle,       253,  254,  287,  291 
Greening  v.  Patten,  538 

v.  Sheffield,  184 

Greenleaf  v.  Hill,  456 

Greenough  v.  McClelland,  226 

Greenslade  v.  Dower,  554,  562 


Hadley  v.  Brown,  457 

Hagar'v.  Mounts,  573,  579 

v.  Rice,  179,  203 

Haggard  v.  Conkwright,  376 

Kaggerty  v.  Tavlor,  599 

Hague  v.  French,  85,  88,  342 
Haigh  v.  Guardians  of  N.  Brierlv,      468 

Haight  v.  Navlor.  194,  214 


XXX11 


CASES    CITED    IN    VOLUME    ONE. 


PAGE. 

PAQE. 

Ffaile  v.  Pierce, 

193,   '-'IS 

II; 

mdyside  v.  Cameron, 

64,  499,  500 

Haines'  Admr.  v.  Tenant. 

393 

11 

inford  v.  Obrecht, 

328 

v.  I  hibois, 

(Is 

Hanger  v.  Abbott, 

372 

I  [air  v.  I.i  Brouse, 

133 

v.  Dodge. 

73 

tlaldetuan  v.  Bank  of  Middletown,      555 

Hanks  v.  Deal, 

396 

Hale  v.  Brown, 

:;s; 

Hanley  v.  Gandy, 

70 

V     <  MTrisll. 

398 

v.  Lang, 

276 

v.  Lawrence, 

52 

Hi 

tnnahs  v.  Sheldon, 

381 

v.  Wall, 

373 

Hannibal,  &C,  R.  R.  Co.  v 

Marion  Co.,  490 

1 1  ilrv  v.  Lane, 

403,  426 

H« 

union  v.  Madden, 

429 

Halifax  v.  Lyle, 

365,  394 

II. 

inn  urn's  Appeal, 

386 

Union  v.  Wheelwright,           296 

H 

inrick  v.  Andrews, 

43 

Hall  v.  Auburn  Turnpike  Co.,      189,  479 

Hansee  v.  De  Witt, 

419 

v.  Bank  of  Commonwealth,  136,  138, 

H 

ipgood  v.  Watson, 

233,  560 

295,  296,  304 

Harbison  v.  Lemon, 

384,  385 

v.  Bradbury, 

182 

H. 

irdin  v.  Olson, 

317 

v.  Burton, 

230,  232, 

Harding  v.  Cobb, 

418 

v.  Cockrell, 

181,  535 

v.  The  State, 

254.  290 

v.  Commonwealth, 

296 

Hardin  v.  Wolf, 

447 

v.  Crandall, 

187,  1.90,  533 

Hardy  v.  Brier, 

171 

v.  Eccleston, 

435 

v.  Merriwether, 

472 

v.  Harris, 

95,  172 

v.  Norton, 

70,  253,  291 

v.  Hickman, 

73,74 

v.  Pilcher, 

214,  220,  263 

v.  Lauderdale, 

531 

v.  Pitcher, 

219 

v.  Newcomb, 

298 

v.  Waters, 

394 

v.  Phelps, 

69,  72 

v.  White, 

67 

v.  Smith,         176,  177 

222,  571,  572 

Harker  v.  Anderson, 

8 

v.  Tufts, 

251 

Harkins  v.  Edwards, 

190 

v.  Turnpike  Co., 

187 

Harman  v.  Howe, 

139 

v.  Wilcox, 

226 

Harmon  v.  James, 

105 

v.  Wilson, 

339 

v.  Wilson, 

95 

v.  Wyche, 

416 

Harner  v.  Dipple, 

389 

fio.llett  v.  bakes, 

379 

H 

irper  v.  Butler, 

34,48 

Hallidav  v.  Atkinson, 

280 

v.  Calhoun, 

519,  520 

v.  Want, 

591 

v.  Clark, 

330 

Hal  lock  v.  De  Mum, 

414 

v.  Devene, 

527 

Halsey  v.  De  Hart. 

272 

v.  Ely, 

373 

Halstead  v.  Mayor,  &c, 

488 

v.  Hampton, 

30 

Haly  v.  Lane, 

453 

v.  Little, 

190 

Hamilton  v.  Brooks, 

461 

v.  Wringley, 

573 

v.  Hooper. 

224 

Harrell  v.  Barnes, 

132 

v.  Lycoming  Mut.  Ins.  Co.,  82, 

v.  Mars  ton, 

151 

469 

II 

irriman  v.  Sanborn, 

141,  143,311 

v.  Mutual  Life  Ins.  Co.,       372 

H 

irris  v.  Brooks, 

225 

v.  Myrick, 

141,  142 

v.  Clark, 

276 

v.  Newcastle,  &c. 

R.  R.  Co.,  215, 

v.  Dale, 

431 

470,  471,  483 

Ex  parte, 

590,  598 

v.  Seaman, 

590 

v.  Harris, 

434 

v.  Spottiswoode, 

105 

v.  Lewis. 

157 

v.  Summers, 

1/5,  554,  576 

v.  Parker, 

169 

v.  Wood, 

98 

v.  Quine, 

52 

Hamlin  v.  Boa  I'd  of  Liquidators,           493 

v.  Wall, 

397 

Hammond  v.  Aiken, 

598 

v.  Wamsley, 

382 

v.  Varian. 

510 

H 

irrison  v.  Edwards. 

36,  49,  55, 

Samper,  Ex  parte, 

552 

v.  Fane, 

391 

Hampton  v.  Speckenagle, 

531 

v.  Jackson, 

499,  550 

Hamrick  v.  Craven, 

609 

v.  McClelland, 

164,  605 

Hance  v.  Miller, 

298 

v.  Richardson, 

382 

Hancock  Bank  v.  Joy, 

455 

v.  Stacy, 

52 

v.  Chicot  Co.. 

483,  488 

v.  Sterry, 

551 

v.  Fairfield, 

178,  219 

Harrod  v.  McDaniels, 

528 

v.  Yunker. 

190 

H 

irrow  v.  Dugan, 

104 

Hands  v.  Slaney, 

389 

Hart  v.  Deamer, 

383 

CASES    CITED    IN   VOLUME   ONE. 


XXX111 


PAGE. 

Hart  v.  Life  Assoc,  106,  10S 
v.  Missouri,  &c,  Ins.  Co.,     476,  478 
v.  Stephens,  464,  465 
v.  Wills,  20,  44,  95 
Harter  v.  Kernochan,  491 
Hartford  Bank  v.  Barry,  184,  519,  520 
F.  I.  Co.  v.  Wilcox,  501 
Hartley  v.  Wharton,  397 
v.  Wilkinson,  301,  346 
Hartman  v.  Dowdel,  460 
Hartness  v.  Thompson.  403 
Hartridge  v.  Wesson,  352 
Hartwell  v.  Hemmenwav,  11 
Harvev  v.  Cane,  62,  290 
v.  Irvine,  200,  209.  223 
v.  Kav,  552 
Hasbrook  v.  Palmer,  120,  125,  134 
Hascall  v.  Life  Association,  212,  261,  4,0 
Hasey  v.  White  Pigeon  B.  S.  Co.,  234,  263 
Hasheagen  v.  Specker,  431 
Haskell  v.  Cornish,  200,  205 
v.  Jones,  102 
Haskins  v.  Edwards,  223 
Hastings  v.  Dollarhide,  394,  395 
v.  Johnson,  125 
v.  Lovering,  178 
v.  Vaughn,  78 
Hatch  v.  Searles,  287,  524 
v.  Taylor.  525 
v.  Trayes,  279 
Hatcher  v.  McMorine,  37,  47 
Hatchett  v.  Baddeley,  427,  455 
Hatton  v.  Jones,  333 
Haughton  v.  Ewbank,  508,  509 
Hausvullier  v.  Hartsink,  156 
Haven  v.  Foster,  30 
v.  Grand  Junction  R  E.,  84,  110 
v.  Hobbs,  63,  500,  538 
Haverhill   Mutual  Ins.  Co.  v.  New- 
hall,  206,  207 
Hawes  v.  Dunton,  577 
Hawkins  v.  Carroll  Coiuitv,  483 
v.  Watkins,  120 
Hawley  v.  Bingham,  115 
v.  Sloo,  31,  40,  41 
Hawver  v.  Seibert,  371 
Haxton  v.  Bishop,  9,  170 
Hayden  v.  Cretcher,  591 
v.  Davis,  478 
v.  Thaver,  341 
v.  Weldon,  272 
Haydock  v.  Lynch.  113,  140 
Hayes  v.  Brubaker,  194 
v.  Matthews,  194 
Haynes  v.  Beckman,  240,  312 
v.  Foster,  507 
Hays  v.  Crutcher,  194 
v.  Galion  Gaslight  Co.,        472.  483 
v.  Gwin,  1 12 
Hay  ward  v.  Barker,  425,  429 
v.  Blake,  374 
Ex  parte,  88,  334 
v.  French,  555 


PAGE. 

Hayward  v.  Hayward, 

464 

v.  Pilgrim  Society, 

470 

Hazard  v.  Cole, 

234 

Hazelhurst  v.  Kean, 

1", 

Hazleton  v.  Union  Bank, 

106,  107 

Head  v.  Sewell, 

170 

Headen  v.  Rosher, 

433 

Healey  v.  Story, 

202,  209 

Healy  v.  Gorman, 

26,  54 

Heard  v.  Dubuque  County 

Bank 

312,  316 

v.  Stamford, 

463 

Hearson  v.  Grandine, 

97 

Heath  v.  Mahoney, 

395 

v.  Sansom,           57£ 

,  588 

,  590,  600 

v.  Van  Cott, 

422 

v.  West, 

401 

Heaton  v.  Myers, 

217 

Hedley  v.  Bainbridge, 

562 

Heenan  v.  Nash, 

177 

178,  568 

Hefther  v.  Wenrich, 

98 

Heffron  v.  Hanaford, 

581 

Heilbut  v.  Nevill, 

557 

Heister  v.  Gilmore, 

68 

Heifer  v.  Alden, 

73,  74 

Helm  v.  First  National  Bank, 

102 

Heltner  v.  Krolick, 

147 

Helmsley  v.  Loader, 

548 

Hemmenway  v.  Stone, 

104 

177,  222 

Hemmingway  v.  Mathews, 

418,  461 

Hemphill  v.  Bank  of  Alab 

*ma, 

244,  297, 
544 

v.  Hamilton, 

231,  607 

v.  McClimans, 

425 

Hendee  v.  Pinkerton, 

79 

Henderson  v.  Ackelmine, 

172 

v.  Australian  S. 

N.  Co., 

v.  Bondurant, 

136 

295,  304 

v.  Comptoir  d'Escompte,    266 

v.  Fox, 

393 

v.  Wild, 

580 

Hendrick  v.  Foote, 

406,  413 

Hendricks  v.  Franklin, 

38 

v.  Thornton, 

231 

Hendrie  v.  Berkowitz, 

583 

Hennen  v.  Gilman, 

369,  370 

Henry  v.  Colman, 

113,  301 

v.  Dillay, 

466 

v.  Gauthreaux, 

449 

v.  Hazen, 

151,  155 

Henschel  v.  Mahler, 

149 

Henshaw  v.  Dutton, 

116, 

345,  346 

Hepburn  v.  Griswold, 

123,  125 

v.  Toledans, 

95 

Herald  v.  Connah, 

202,  213 

Herbert  v.  Hine, 

138, 

296,  544 

v.  Tut  hill's  Executors, 

141,  142 

Hereth  v.  Merchants'  National  Bank,  102 

v.  Meyer, 

102 

Hewick  v.  Woolverton, 

157 

Herri  man  v.  McKee, 

143 

Herring  v.  Sanger, 

170 

Hersey  v.  Elliot, 

367 

Hershizer  v.  Florence, 

408 

XX  XIV 


CASES    CITED    IX    VOLUME    ONE. 


Hertell  v.  Bogert, 
1  [ester  r.  Wesson, 
Eletlieriogton  v.  1 1  ixon, 
Heuback  v.  Mollmann, 
Heugh  v.  Jones, 
Hey  wood  v.  Perrin, 

v.  Pickering, 
Wingate, 


PAGE. 

(ill) 

606 

419,  421,  424 

179 

446 

161,  300,  3015 
351 
233 


Hibblewhite  v.  McMorine,      84,  288,  289 

Hibernian  Bank  v.  Everman,  586 
Hibernia  Nat.  Bank  v.  Lacombe,    25,  37, 

56 

Hickman  v.  Kunkle,  576 

v.  Beineking,       .  574 

Hicks  v.  Brown,  56,  165 

v.  Hinde,  182,  218 

v.  Marshall,  383 

v   Russell,  595 

Higerty  v.  Higerty,  104 

Higgius  v.  Bullock,  11 

v.  Senior,  217,  219 

v.  Willis,  411 

Highmore  v.  Primrose,  275 

Hikes  v.  Crawford,  569 

Hi  I  born  v.  Alford,  64,  6.9 

v.  Artis,  246 

Hildreth  v.  Shepard,  45 

Hill  v.  Buckininster.  280 

v.  Caillovel,  74 

v.  Dunham,  88,  89,  90,  342,  344 

v.  Gow,  94 

v.  Halford,  117,  152 

v.  Huntress,  130,  308 

v.  Lewis,  257,  266,  273 

v.     Manchester,     &c,     Water 

"Works  Co.,  479 

Hill  v.  McPherson,  233 

v.  Todd,  275 

v.  Varrell,  95 

v.  Wilker,  31,  41 

v.  Wilson,  280 

Hilliard  v.  Moore,  131 

Hills  v.  Bannister,  194 

v.  Place,  168 

v.  Upton,  513 

Hillsdale  College  v.  Thomas,  346 

Hillyard  v.  Mutual  Benefit  Ins.  Co.,    372 

Hillyer  v.  Bennett,  401 

Hilton  v.  Houghton,  88,  91,  344 

Hind's  Estate,  466 

Hinely  v.  Margaritz,  396,  397 

Hinkley  v.  Marean,  51,  52 

Hirschfeld  v.  Smith,  28,  50 

Hirecbman  v.  Budd,  99 

Hise  v.  Foster,  130 

Hitchcock  v.  Buchanan,  198,  204 

v.  Cloutier,  101 

Hittson  v.  Davenport,  124 

Hoag  v.  Lamont,  499 

Hoagland  v.  Titus,  382 

Hobart  v.  Dodge,  159 

Hobblethwaite  v.  Battins,  57 

Hobbs  v.  Cowden,  194 


PAGE. 

Hodge  v.  First  Nat.  Bank  of  Rich- 
mond, 517 
Hodge  v.  Fillis,  168 
Hodges  v.  Eastman,  69 
v.  Hall,  314 
v.  Hunt,  392,  397 
v.  Price,  411 
v.  Shuler,                   129,  155,  314 
v.  Steward,  271,  365 
Hodgkinson,  Ex  parte,  552 
Hodgman  v.  Chicago,  &c,  R.  R.  Co.,  490 
Hodgson  v.  Dexter,        180,  181,  534,  535 
Hoffman  v.  Moore,  68 
Hogarth  v.  Latham,                283,  582,  588 
v.  Wherley,  505,511 
Hogett  v.  Emerson,  52 
Hogg  v.  Skene,                        585,  586,  588 
v.  Smith,  503 
Hoit  v.  Underhill,  396 
Hoi  brook  v.  Basset,  471 
v.  Vibbard,  38 
Holderuess  v.  Baker,  538 
Holdsworth  v.  Hunter,  231,  264,  357,  358 
Holland  v.  Barnes,  384 
v.  Hatch,  28,  285 
v.  Moody,  457,  459 
v.  Vanard,  117 
Hollen  v.  Davis,  136,  304 
Holliday  v.  Atkinson,  275,  401 
v.  Lewis,  335 
Hollister  v.  Hopkins,  144 
Hoiloway  v.  Porter,  171 
Holman  v.  Gilliam,  104 
v.  Johnson,  321 
Holmes  v.  Blogg,  401 
v.  Broughton,  31 
v.  Burton,  569 
v.  Higgins,  559 
v.  Jacques,  236 
v.  Kerrison,  147 
v.  MacKrell,  332 
v.  Porte.  555 
v.  Sinclair,  104 
v.  Sixsmith,  331 
v.  Trumper,  285 
v.  West,  159,  160 
Holt  v.  Bacon,  520 
v.  Body,  224 
v.  Given,  122 
Holtgreve  v.  Wintker,  598 
Holtz  v.  Boppe,  162 
Hood  v.  Aston,  585,  587 
v.  Hallenbeck,  196,  218 
Hooe  v.  Ox  ley,  546 
Hooker  v.  Boggs,  450 
Hook  v.  Pratt,  276 
Hoop  v.  Plummer,  457 
Hooton  v.  Ransom,  416,  441 
Hoover  v.  Johnson,  152 
Hope  v.  Cust,  579,  580 
Mut.,  &c,  Ins.  Co.  v.  Perkins,    471 
Hopewell  v.  De  Pinna,  429 
Hopkins  v.  Blane,  178,  505 


CASES   CITED    IN    VOLUME   ONE. 


XXXV 


PAGE. 

Hopkins  v.  Boyd, 

586 

v.  Lane. 

104 

v.  Mehaffy, 

187,  190. 

v.  R.  R.  Co., 

74 

v.  Seymour, 

120,  271 

Hopper  v.  Eiland, 

338 

v.  Town  of  Covingt 

on, 

84,  482 

Hopson  v.  Binnwankel, 

106 

v.  Boyd, 

379,  558 

v.  Fountain, 

120, 

121, 

127,  128 

Horah  v   Long, 

241 

Home  v.  Redfearn, 

103,  104 

v.  Rouquette, 

>8,  39,  50 

Horner  v.  Wallis, 

70 

Horton  v.  Coggs, 

271 

v.  Garrison, 

205 

v.  State, 

329 

v.  Town  of  Thompson, 

493 

Hortons  v.  Townes, 

506 

Hortsman  v.  Henshaw, 

248 

Hosford  v.  Nichols, 

27 

v.  Stone, 

273 

Hosstatter  v.  Wilson, 

111, 

118 

129,  314 

Hostetter  v.  Hoke, 

184 

Hotchkiss  v.  English, 

539 

554,  587 

v.  Nat.  Bank, 

83,  468 

Houghton  v.  First  Nat. 

Bank, 

184,  519 

v.  Francis, 

115 

v.  Maynard, 

58 

Houriet  v.  Morris, 

369 

Houston  v.  Cooper, 

390 

v.  Potts, 

21,44 

Hovey  v.  Hobson, 

377,  378 

v.  Magill, 

195, 

196 

207,  215 

Howard  v.  Baillie, 

503,  525 

v.  Branner, 

41 

v.  Okes, 

465 

v.  Palmer, 

229,  270 

v.  Windham  Co.  Sav.  B 

ank,    107 

Howe  v.  Bowes, 

169 

v.  Carpenter, 

328 

v.  Hartness, 

106, 

108,  126 

v.  Lawrence, 

52 

v.  Merrill, 

298 

v.  Ould, 

333,  337 

v.  Wildes, 

411,412 

Howell  v.  Gordon, 

373 

Howenstein  v.  Barnes, 

46,  316 

Howes  v.  Austin, 

132 

Howland  v.  Edmonds, 

154, 

157,  158 

v.  Eldredge, 

493 

Hoyt  v.  Adee, 

383 

v.  Jaffray, 

275 

v.  Lynch, 

101, 

227,  229 

v.  Thompson, 

517,  526 

Hubbard  v.  Cummings, 

399 

v.  Gurney, 

224 

v.  Harrison, 

316 

v.  Hollo  way, 

106,  292 

v.  Mosely, 

148 

Hubble  v.  Fogartie, 
Huber  v.  Steiner, 
Hudson  v.  Poindexter, 
Huey's  Appeal, 
Huff  v.  Wright, 
Hughes  v.  Brown, 

v.  Littlefield, 
v.  Wheeler, 
Huguley  v.  Morris, 
Hugus  v.  Strickler, 
Hiding  v.  Hugg, 


PAGE. 

276,  279 

52 

77 

33 

441 

417 

186,  226 

276 

562 

329 

230,  235,  270 


New  York  &  H.  R.  R.,  84,  289  j 
Williamson,  254  | 


Hull  v.  County  of  Marshall,  523 

Hulme  v.  Tenant,  433,  440 

Humphrey  v.  Beckwith,  113,  148,  150,  319 

Humphreys  v.  Guillow,  104 

v.  Wilson,  331,  499,  508 

Humphries  v.  Chastain,  596 

Hunt  v.  Adams,  66,  148,  223,  293 

v.  Aldrich,  248 

v.  Chapin,  509,  562,  563 

v.  Divine,  106,  154 

v.  Hall,  598 

v.  Hunt,  36,  51 

v.  Johnson,  30 

v.  Livermore,  308 

v.  Massey,  390,  394 

v.  Rousmanier,  226 

v.  Standart,     24,  25,  28,  38,  47,  171 

Hunter  v.  Agnew,  392 

v.  Blodgett,  19,  249 

v.  Cobb,  328 

v.  Duvall,  425 

Ex  parte,  564 

v.  Henninger,  102 

v.  Jeffery,  247,  249 

Huntington  v.  Bank  of  Mobile,   138,  291, 

296,  297 

v.  Harvey,  68,  266 

v.  Lyman,  574 

Hurd  v.  Marple,  503 

Hurst  v.  Hill,  590 

Husband  v.  Epling,  155 

Husbands,  Ex  parte,  176,  572 

Huse  v.  Hamblin,  47,  108,  127 

Hussey  v.  Jacob,  350 

v.  Winslow,  103 

Huston  v.  Cone,  450 

v.  Young,  91 

Hutchings  v.  Low,  27  L 

Hutchins  v.  Bank  of  Tennessee,  60O 

Hutchinson  v.  Moody,  97,  98 

v.  Underwood,  414,  421 

Huyck  v.  Meador,  106,  159 

Hyatt  v.  Bank  of  Kentucky,  47,  48 

v.  James,  94,  371 

Hyde  v.  County  of  Franklin,  481 

v.  Franklin  County,  110 

v.  Goodnow,    18,  19,  20,  21,  24,  34, 

35,  39,  95,  336- 

v.  Paige,  180 

v.  Price,  426- 

Hykes  v.  Crawford,  177 


XXX  VI 


CASES   CITED    IX    VOLUME   ONE. 


Hypes  v.  Griffin, 
Hyland  v  Blodgett, 
Hyne  v.  Dewdney, 


PAGE 

191,  218,  220 
129 
104 


I. 

I  iK-  v.  [ngraham,  592 

ll.msen  v.  Negley,  556,  561,  588 

I  Isley  v.  Merriam,  57 

[meon,  Ex  pane.  127 

[mhoff  v.  Whitmer,  386 

imperial  Land  Co.,  In  re,  82,  267,  468 
Independent  School  District  v.  Hall,  481 
Indiana,  &cM  R  R.  Co.,  v.  Davis,  263 
Indianapolis  Piano  Mfg.  Co.  v.  Caven,    96, 

172 

[ngham  v.  Dudley,  319 

v.  Primrose,  335 

v.  White,  451 

Ingledew  v.  Douglass,  392 

[nglish  v.  Breneman,  88,  293 

Ingraham  v.  Baldwin,  377 

v.  Gibbs,  359 

Inhabitants,  &c,  v.  Weir,  523 

Inkster  v.  First  National  Bank,  186 

International  Bank  v.  German  Bank,  279 

Iowa.  &c,  R.  R.  v.  Perkins,  325 

Irish  v.  Webster,  241,497,  535 

[rving  National  Bank  v.  Alley,    232,  249 

Irvine  v.  Lowry,  128 

Irwin  v.  Bailey,  516 

v.  Brown,  78 

Isaacs  v.  Mc Andrews,  41 

Isnard  v.  Torres,  296 

Israel  v.  Benjamin,  322 

v.  Israel,  106 

v.  Redding,  331 

Ives  v.  Farmers'  Bank,      41,  54,  283,  285 

Ivey  v.  Lalland,  39 

Ivory  v.  Michael,  284,  285 


Jacaud  v.  French, 

Jack  man  v.  Bowker, 

Jacks  v.  Nichols, 

Jackson  v.  Gumaer, 
v.  Hudson, 
v.  Kino, 
v.  Myers, 
v.  Parks, 
v.  Saokett, 
v.  Stockbridge, 
v.  Tilghman, 
v.  Van  Dnsen, 
v.  Waddill, 
v.  Y.  &  C.  R.  R., 

Jacobs  v.  Benson, 

v.  Cunningham, 

Jacquin  v.  Warren, 

Jadis  v.  Williams, 


575,  577 

113,  141,  142 

26,  45 

377,  378 

261 

382 

78,  82,  468 

450 

78 

117 

134,  151 

382 

127 

83,  84,  468 

237,  251 

328 

106,  324 

99 


PA(JE. 

Jaftrey  v.  Frebain, 

403 

.lames  v.  Alt'ord, 

390 

v.  Allen, 

57 

v.  Catherwood, 

35,  321 

v.  Hagar, 

112 

v.  Lanjjdon, 

382 

v.  Lewis, 

512 

v.  Scott, 

280 

Jameson  v.  Gregory, 

39 

January  v.  Goodman, 

72,  73 

v.  Henry, 

128 

Jaques  v,  Marquand, 

556 

v.  Methodist  Episc. 

Church,     434 

v.  Sax, 

395 

Jardine  v.  Payne, 

332 

Jarrnan  v.  Wilkerson, 

439 

Jarrolt  v.  Moberly, 

487 

Jarvis  v.  Wilkins, 

313 

Jeffe.ries  v.  Austin, 

345 

Jeflery  v.  Walton, 

61 

Jefts  v.  York,  187,  190,  193 

200,  522,  534 

Jemison  v.  Walsh, 

559 

Jeneson  v.  Jeneson, 

381 

Jenkins  v.  Blizard, 

602 

v.  Caddo, 

114,  314 

v.  Dawes, 

70 

v.  Hurt's  Exr., 

80 

v.  Hutchinson, 

189 

Jenner  v.  Morris, 

427,  568 

Jenners  v.  Howard, 

385 

Jennings  v.  Rundall, 

395 

Jenny  v.  Herle, 

140 

Jerome  v.  McCarter, 

368 

v   Whitney, 

129,  281 

Jester  v.  Hooper, 

251 

Jewell  v.  Wright,  19,  20,  26 

27,34,  36,40, 

41,  45 

Jewet.t  v.  Whalen, 

534 

Jillson  v.  Hill, 

158 

Joest  v.  Williams, 

385 

John  v.  Farmers'  Bank, 

472 

v.  State, 

Johns  v.  Fritchey, 
v.  Harrison, 

Johnson  v.  Bainey, 
v.  Baird, 
v.  Barney, 
v.  Berlizheimer, 
v.  Blasdale, 
v.  Branch, 
v.  Catlin, 
v.  Chadwell, 
v.  Crossland, 
v.  Frisbie, 


329 
384 
138,  293,  296,  297 
108 
130 
106 
597 
297,  544 
345 
241 
381 
315 
310 


v.  Gallagher,    428,  430,  439,  443 


Heagan, 

Henderson, 

Jones, 

King, 

Lusk, 

Malcolm, 

Mangum, 

Medlicotte, 


56J 


300,  302 

108,  125 

413 

222 

465 

441 

608,  610 

384,  385 


CASES    CITED    IX    VOLUME    ONE. 


XXXV11 


Johnson  v.  Miller, 

PAGE. 

126 

v.  Mitchell, 

246 

v.  Offutt, 

359 

v.  Pye, 

395 

v.  Seymour, 

131 

v.  Smith, 

196,  204 

v.  Sutherland, 

446 

v.  Vickers, 

124 

School  Township  v.  Citizens' 

Bank,  187,  198 

Johnston  v.  Dutton,  557 

v.  Speer,  135,  138,  285,  295,  317 

Harvester  Co.  v.  Clark,  319 


Joliffe  v.  Higgins, 

142 

Jordaine  v.  Lashbrooke, 

354 

Jordan  v.  Anderson, 

444 

v.  Fountain, 

117 

v.  Tate, 

147 

v.  Trice, 

183 

Joseph  v.  National  Bank, 

138,  296 

v.  Salomon, 

16 

Joslin  v.  Miller, 

24 

Josselyn  v.  Ames, 

273 

v.  Lacier, 

142 

Joyce  v.  Williams, 

574,  576 

Jones'  Appeal, 

330 

Jones  v.  Berryhill, 

277,  292 

v.  Brown, 

159 

v.  Butler, 

389,  399 

v.  Clark, 

200 

207,  563 

v.  Colvin, 

391 

v.  Corbett, 

586,  587 

v.  Crossthwaite, 

441,  445 

v.  Darch, 

393 

v.  Deyer, 

v.  Eisler, 

150 

v.  Fales, 

120, 

127,  304 

v.  Hook, 

51,  53 

v.  Jones, 

325 

v.  Lathrop, 

179,  536 

v.  Le  Tombe,  180, 181 

,  497, 55 

v.  Lewis, 

411,  426 

v.  Logwood, 

78 

v.  Nellis, 

339 

v.  Phoenix  Bank, 

399 

v.  Radatz,  317 

v.  Ryder,  331 

v.Shaw,  116,345 

v.  Shelby  ville  Ins.  Co.,  138,  290,  296 


v.  Simpson, 

134 

v.  State, 

121 

v.  Thorn, 

597 

v.  Warren, 

457 

v.  Westcott 

243, 

245 

v.  Witter, 

272 

v.  Wood, 

171, 

274 

v.  Yates, 

575, 

559 

Judah  v.  Harris, 

128 

Juilliard  v.  Greenman, 

123 

Jump  v.  Peltier, 

124 

Junction  R.  R.  v. 

Cleueay, 

83, 

468 

Jury  v.  Barker, 

114 

K. 

PAGE. 

Kanaga  v.  Taylor,  19,  34,  36,  39 

Karch  v.  Avinger,  104 

Kaskaskia  Bridge  Co.  v.  Shannon,      234, 

263 

Kavanagh  v.  O'Neill,  422 

Kay  v.  Duchesse  de  Pienne,  430 

y.  Smith,  400 

Kayser  v.  Hall,  232 

Keable  v.  Payne,  331 

Kean  v.  Davis,  195,  203 

Kearney  v.  King,  26,  131 

v.    West   Granada   Mining 

Co.,  359 

Keen  v.  Coleman,  411 

Keene  v.  Beard,  270 

Keith  v.  Jones,  120 

v.  Keith,  232 

Kell  v.  Nainby,  552 

Keller  v.  McHuffman,  222,  223 

Keller's  Admr.  v.  McHuffman,  104 

Kelley  v.  Brooklyn,  110,  143,  144 

v.  Drury,  57 

v.  Hemmingway,  153 

v.  Hurlburt,  600 

v.  Lindsey,  510 

v.  Mayor.  &c,  of  Brooklyn,     471, 

472,*  481,  483 

Kellogg  v.  Fancher,  577 

Kelly  v.  Bronson,  141 

v.  Mayor,  &c,  470 

Kelner  v.  Baxter,  531,  533 

Kelsey  v.  Hibbs,  149 

Kelso  v.  Tabor,  423 

Kemble  v.  Lull,  113 

Kemeys  v.  Richards,  575 

Kemp  v.  Klaus,  316 

Kemper,  &c,  Banking  Co.  v.  Schief- 

felin,  244,  246 

Kendall  v.  Galvin,        159,  162,  266,  276, 

279 

y.  May,  .37'.' 

v.  Morton,  202 

v.  Riley,  590,  592 

Kenicott  v.  Supervisors,  483,  491 

Kennedy  v.  Knight,  195,  220 

Kenner  v.  Creditors,  89,  150 

Kenney  v.  Hinds,  141 

Kentgen  v.  Parks,  541 

Kenton  Ins.  Co.  v.  McClellan,      410,  414 

Kenworthy  v.  Hopkins,  359 

v.  Sawyer,  422,  452 

Kenyon  v.  Farris,  427 

v.  Williams,  182,  218 

Kershaw  v.  Cox,  273 

Kessler  v.  Hall,  184,  606 

Ketcham  v.  City  of  Buffalo,  483,  485 

Ketchell  v.  Burns,  103,  272 

Ketchum  v.  Duncan,  84 

Key  v.  Parnham,  201 

Keyes  v.  Fenstermaker,  159 


XXXV1U                           CAS] 

2S  ( 

JITED    11 

PAGE. 

Kibble,  Ex  parte, 

399 

Kidder  v.  Horrobin, 

334 

Kidson  v.  Dilworth, 

537 

Kilgore  v.  Bulkley, 

49,  106 

v.  Jordan, 

401 

Kilgour  v.  I'inlyson, 

503 

593,  595 

Kill  v.  .Johnson, 

325 

Killam  v.  Schoeps, 

319 

Killough  v.  Alford, 

122 

Kimiiall  w  Cleveland, 

519 

v.   Huntington, 

108,  276 

Kimbro  v.  Bullitt, 

562,  585 

v.  First  Nat.  Bank, 

457 

Kime  v.  Brooks, 

288 

Kimin  v.  Weippert, 

413 

434,  412 

K  iminell  v.  Bittner, 

ITS),  536 

Kincaid  v.  Higgins, 

150 

King  v.  Baldwin, 

224,  225 

v.  Faber, 

556,  577 

v.  Fleming,                8£ 

,91 

344,  345 

v.  Hamilton, 

139 

v.  Handy, 

215 

v.  Hanson, 

373 

v.  Hoare, 

223 

v.  King, 

117 

v.  Lambton, 

333,  336 

v.  Servia, 

18 

v.  Smith, 

593.  596 

v.  Thompson, 

420,  423 

v.  Thorn, 

184 

605,  607 

v.  Vance, 

172 

Kingsburv  v.  Butler, 

100,  158 

v.  Wall,         111, 

112, 

113,  129 

Kingston  v.  Long, 

111 

Kinne  v.  Ford, 

336 

Kinney  v.  Flynn, 

230 

v.  Lee, 

141 

Kinsely  v.  Shenberger, 

104 

Kinsman  v.  Birdsell, 

276,  281 

v.  Dallam, 

175 

Kinyon  v.  Wohlford, 

335 

Kipp  v.  McChesney, 

561 

Kirby  v.  Miller, 

437 

Kirk  v.  Blurton, 

176,  565 

v.  Dodge  Co.  Mut.  Ins 

115,  313 

Kirkman  v.  Bank  of  America, 

335 

v.  Benham, 

185, 

604,  605 

Kirkpatrick  v.  McCullough 

127,  128 

Kirtland  v.  Wanzer, 

53 

Kitclien  v.  Lee, 

401 

v.  Place, 

166,  294 

Kitner  v.  Whitlock, 

175,  567 

Klauber  v.  Biggerstaff, 

108,  126 

Kleckner  v.  Klapp, 

186 

Klein  v.  Supervisors, 

482 

Kline  v.  Baker, 

30 

v.  L'Amoureux, 

391 

Klosterman  v.  Loos, 

210,  220 

Knapp  v.  Abell, 

30 

v.  Mayor,  &c,  of  Hoboken,     110, 

484,  485 

v.  McBride,  577 

v.  Parker,  *     67 


Knight  v.  Conn.  River  Petroleum  Co.,  130 

v.  Crockford,  66 

v.  Hurlbut,  62 

v.  Jones,  135,  231,  236 

v.  Lang,  547 

v.  Reynolds,  157 

v.  Wilmington  R.  R.,  320 

Knill  v.  Williams,  273,  281 

Knipper  v.  Chase,  312 

Knovvles  v.  Hill,  305 

Knowlton  v.  Bradley,  612 

Knox  Co.  v.  Aspinwall,  468 

V.Clifford,  91 

v.  Jordan,  439,  441 

v.  Reeside,  426 

Koechlin  v.  Lorber,  421 

Koebring  v.  Muemminghoff,         160,  161 

Kohn  v.  YVatkins,  247,  251 

Kolls  v.  De  Leyer,  443 

Koontz  v.  Nabb,       •  437 

Kountz  v.  Hart,  284 

Kritzer  v.  Mills,  225 

Krouskop  v.  Shontz,      150,  161,  300,  302, 

442 

Krumbhaar  v.  Ludeling,  216 

Kuenzi  v.  Elvers,  28,  31 

Kupfer  v.  Marc,  125- 


L. 

Lacy  v.  Central  Nat.  Bank, 

v.  Dubuque  Lumber  Co., 

v.  Holbrook, 

v.  Sugarman,  370,  371, 

v.  Woolcot, 
Ladd  v.  Baker, 

v.  Dudley, 

v.  Town  of  Franklin, 
Lafayette  Bank  v.  State  Bank, 
Laflin  Powder  Co.  v.  Sinsheimer, 

Lafitte  v.  Rivera, 
Laidley  v.  Bright, 
Laird  v.  State, 

v.  Tliomas, 
Lake  v.  Ruffle, 
Lallerstedt  v.  Griffin, 
Lamb  v.  Irby, 
v.  Price, 

v.  Story,  115, 

Lambert  v.  Carroll, 

v.  Jones, 

v.  Lagow, 

v.  Taylor, 
Laugston  v.  South  Carolina  R.  R 
Lamkin  v.  Nye, 
Lamon  v.  French, 
L'Amoureux  v.  Crosby, 
Lamonrieux  v.  Hewit, 
Lamprell  v.  Guardians  of  Poor, 
Lampton  v.  Haggard, 
Lancaster  Co.  Bank  v.  Moore, 


197. 


240 

207, 

218 

125 

374,  375- 

598,  603 

104,  222 

342 

539- 

519- 

195,214, 

218,  220 

125 

77 

119 

445 

457 

213 

602 

186 

135,  148 

524 

35,  54 

222 

267 

83 

75 

149 

386 

272 

82,  467 

126 

378 


CASES    CITED    IN    VOLUME    ONE. 


PAGE.   I 

Land  Credit  Co.  of  Ireland,  540 

Lander  v.  Castro,  190,  539 

Landers  v.  Guardians  of  St.  Neot's,      468  J 

Lane  v.  Krekle,  24S,  251,  365 

v.  Salter,  104,  222 

v.  Williams,  550,  577,  587 

Lanfear  v.  Blossman,  347 

Lang  v.  Keppele,  589 

v.  Smyth,  357  \ 

v.  Waters,  132  i 

v.  W hidden,  380 

Langan  v.  Hewett,  550,  584 

Langdale,  Ex  parte,  552 

Lange  v.  Kohne,  120 

Langston  v.  South  Car.  R.  R.,  468 

Lanier  v.  McCabe,  562,  574,  575 

Lanning  v.  Lockett,  519 

Lansdowne  v.  Lansdowne,  131 

Lansing  v.  Gaine,     88,  333,  342,  574,  594 

Lanusse  v.  Barker,  40 

Lapeyre  v.  Weeks,  186,  611 

Lapham  v.  Barrett,  275 

Laplante  v.  Briant,  456 

Larason  v.  Lambert,  100 

La  Rue  v.  Gilkyson,  379 

Latham  v.  Smith,  326 

Latourette  v.  Williams,  465 

Latt  v.  B  >oth,  390 

Latter  v.  White,  341 

Latti'mer  v.  Hill,  349 

Laughlin  v.  Marshall,  106,  108 

Laveriy  v.  Burr,  575,  581,  582 

Laveson  v.  Lane,  575 

Lawrence  v.  Bassett,  20,  333 

v.  Dougherty,  120,  129 

v.  Griswold,  308 

Lawson  v.  Lovejoy,  293 

v.  Morgan,  583 

v.  Weston,  543 

Layet  v.  Gano,  501,  504 

Lazarus  v.  Covvie,  330 

v.  Shearer,  195,  218,  220 

Lazear  v.  National  Union  Bank,  473 

Leach  v.  Blow,  210,  220 

v.  Lewis,  241,  607 

Leadbitter  v.  Farrow,     178,  179,  532,  535 

Leaf  v.  Gibbs,  346 

Leak  v.  Bear,  156 

Leake  v.  Gilchrist,  48 

Lean  v.  Sehutz,  427 

Leaphardtv.  Sloan,  251 

Leavenworth  v.  Brockeway,  31 

&c,  R.  R.  Co.  v.  County 

Court  of  Platte  Co.,  487 

Leavitt  v.  Blatchford,  470 

v.  Connecticut  Peat  Co.,  515 

v.  Palmer,  106,  107 

v.  Peck,  557 

v.  Putnam,  271 

Leaycraft  v.  Hedden,  434,  438,  440 

Lebanon  Bank  v.  Mangan,  107 

&c.,  Road  Co.  v.  Adair,  470 

Lebel  v.  Tucker,  26,  47,  394  i 


PAGE. 

Ledeliey  v.  Powers,  446 
Ledlie  v.  Vrooman,  448 
Ledoux  v.  Bidder,  376 
Ledwich  v.  McKinn,      282,  288,  294,  343 
Lee  v.  Biddis,  132 
v.  Cameron,  427 
v.  Muggeridge,  425 
v.  Selleck,                26,  30,  37,  38,  448 
v.  Wheeler,  465 
v.  Wilcocks,  42,  55 
v.  Zagury,  541 
Leeds  v.  Lancashire,  114,  135,  306 
v.  Vail,  455 
Leeson  v.  Holt,  601 
Le  Fevre  v.  Lloyd,  179,  220,  536 
Legg  v.  LeSg,     '  30,  459 
Leggett  v.  Jones,  135,  310 
v   Raymond,  272 
Legrand   v.   Hampden    Sydnev  Col- 
lege, 82,  469,  480 
Legro  v.  Staples,  134 
Leiber  v.  Goodrich,  127 
Leitner  v.  Miller,  426 
Leland  v.  Parriott,  272,  298,  302 
Lamarque  v.  Stanley,  66 
Lemay  v.  Williams,  98 
Lemon  v.  Dean,  72 
Lenheim  v.  Wilmarding,  340 
Lennig  v.  Ralston,   22,  28,  37,  47,  87,  95, 

354 

Lent  v.  Hodoman,  134 

Leonard  v.  Hudson,  611 

v.  Leonard,  383 

v.  Mason,  101,  229 

Lequeer  v.  Prosser,  67,  103,  104 

Leroux  v.  Brown,  54 

Le  Roy  v.  Beard,  51 

v.  Crowninshield,  52 

v.  Johnson,  591 

Leslie  v.  Hastings,  138,  296 

v.  Langham,  131 

Lester  v.  Webb,  514 

Levally  v.  Harmon,  155,  309 

Leveck  v.  Shafto,  552 

Leverick  v.  Meigs,  537 

Levi  v.  Earl,  419,  440,  448 

v.  Wendell,  524 

Levy  v.  Baker,  379 

v.  Pyne,  562 

v.  Rose,  430 

v.  Wrilson,  548 

Lewis  v.  Brehme,  220,  536,  537 

v.  Bush,  48 

v.  Cramer,  98 

v.  Hanchman,  225 

v.  Harris,  183 

v.  Harvey,  67 

v.  Lee,  427 

v.  Littlefield,  396 

v.  Nicholson,  189,  531 

v.  Owen,  58 

v.  Pead,  381 

v.  Reilly  595,  596 


OASES   CITED   IN   VOLUME  ONE. 


IWGR. 

Lewi-  v.  Wilson, 

73 

v.  Woods, 

431 

Libby  v.  Nikelborg, 

159 

v.  Union  National  B; 

ink, 

516 

Liddiard,  Ex  parte, 

601 

Light  v.  Scott, 

113 

Lightner  v.  Will, 

94,  167 

Li  11  v.  Egan, 

573 

Lilian!  v.  Turner, 

439 

Lilly  v.  Waggoner, 

377 

Lime  Rock  Bank  v.  Mullett 

Sill! 

Ins.  Co.  v.  Hew 

tt, 

134,  320 

&c,  Ins.  Co.  v. 

rreal 

573 

Lincoln  v.  Battelle, 

30,  52 

v.  Buckmaster, 

379 

v.  Hinzey, 

66 

v.  Rowe, 

424 

v.  Smith, 

532 

Lindeman  v.  Rosenfield, 

172 

Lindh  v.  Crowley, 

555 

Lindsay  v.  State, 

80 

Lindsey  v.  McClelland, 

108,  125 

v.  Rottaken, 

485,  488 

Lindsley  v.  Diefendorf, 

83,  480 

Lindus  v.  Brad  well, 

178, 

212,  456 

v.  Melrose, 

201, 

208,  508 

Lines  v.  Mack, 

27,  45 

Lingan  v.  Payne, 

564 

Linville  v.  Holden, 

133 

Lippincott  v.  Town  of  Pana, 

492 

Lisle  v.  Rogers, 

98,  283 

Litchfield  v.  Falconer, 

280 

Little  v.  Bailey, 

209 

v.  Phoenix  Bank, 

127 

v.  Riley,                 23, 

25,  26, 

v.  Rogers, 

232 

v.  Slackford, 

104,  105 

Littlefield  v.  Hodge, 

114 

v.  Shee, 

424 

Litton  v.  Baldwin, 

442 

Lively  v.  Robbins, 

117 

Liverpool  Borough  Bank  v 

Walke 

185,  605 

Livingston  v.  Gaussen, 

184, 

605,  606 

v.  Hastie, 

573,  579 

v.  Roosevelt, 

554 

565,  574 

Lizard  i  v.  Cohen, 

29 

Llewellyn  v.  Wi  nek  worth, 

510,  548 

Lloyd  v.  Archbowl, 

552 

v.  Ash  by, 

175, 

261,  552 

v.  Lee, 

424 

v.  Oliver, 

101,  263 

v.  Sand  Hands, 

334 

v.  Thomas, 

594 

v.  West  Branch  Bank, 

521 

Lobdell  v.  Fowler, 

131 

v.  Hopkins, 

159 

Lockhart  v.  Hul linger, 

156 

Lock  wood  v.  Coley, 

204 

v.  Comstock, 

593 

v.  Jesup, 

231 

Lodge  v.  Phelps, 

48 

Loftu.8  v.  Clark, 

112 

PAGE. 

Logan  v.  Bond,  569 
v.  Hall,  451 
London,  &c,  Bank,  In  re,  501 
Chartered  Bank  v.  Lempri- 
ere,  428,  430 
London  G.  L.  Co.  v.  Nicholls,  82,  467 
Savings  Fund   Soc.  v.   Hag- 
erstown  Sav.  Bank,  107 
I  Long  v.  Carter,  581 
v.  Colburn,  215,533 
v.  Garnett,  598 
v.  Ranisav,  78 
v.  Spencer,  327,  331 
v.  Story,  594 
v.  Tetnpleman,  17,  36 
v.  Walker,  459 
Longee  v.  Washburn,  22,  41 
Lonsdale  v.  Brown,  352 
v.  Lafayette  Bank,  17 
Looke  v.  Newman,  433 
Loomis  v.  Freer,  293 
v.  Ruck,  436 
v.  Spencer,  379 
Loonev  v.  Pinckston,  129 
Lord  v.  Hall,  455,  502 
v.  Ocean  Bank,  13 
Galway  v.  Matthews,    177,557,571 
Loring  v.  Gurney,  1601 
Lounsbury  v.  Depew,  245 
Louisiana  v.  Wood,  492 
Ins.  Co.  v.  Walters,  555 
State  Bank  v.  Orleans  Nav. 
Co.,  489- 
Love  v.  Wells,  92,  343 
Lovelace  v.  Smith,  185 
Lovell  v.  Hill,  103 
Lovett  v.  Adams,  346 
Lovejoy  v.  Citizens'  Bank,  239 
v.  Spafford,  602 
v.  Whipple,                90,  342,  344 
Low  v.  People,  9 
Lowe  v.  Bliss,                  120,  135,  168,  310 
v.  L.  &  N.  W.  Ry.,  82 
v.  London,  &c,  Ry.  Co.,  468 
v.  Murphy,  107 
Lowell  v.  Daniels,  411 
Lowenstein  v.  Knopf,  279 
Lnwery  v.  Steward,  141,  144 
Lowry  v.  Western  Bank,  37,  3.S 
Lozear  v.  Shields,  382 
Lucas  v.  City  of  San  Francisco,  486 
v.  Groning,  537 
v.  Ladew,  31,  32 
v.  Pitney,  474 
Luce  v.  Shoff,  89,  92 
Ludlow  v.  Rensselaer,  3& 
v.  Van  Rensselaer,  321 
Luellen  v.  Hare,  284 
Lumberman's  Bank  v.  Pratt,  595 
Liint  v.  Silver,  224 
Lo.sk  v.  Smith,  590 
Luttle  v.  American,  &c,  Sewing  Ma- 
chine Co.,  416 


CASES    CITED    IN    VOLUME    oXE. 


xli 


PAGE. 

I, veil  v.  Supervisors,  -63 

Lyerly  v.  Wheeler,  89 

Lynam  v.  Calit'er.  81 

Lynch  v.  Goldsmith,  158 

v.  Kirby,  604 

v.  Morse,  330 

Lvn.le  v.  Budd,  401 

v.  The  County,  483,  485 

Lvon  v.  Adamson,  223 

v   Ewings,  24,  292 

v.  Marshall,  231 

v.  Martin,  312 

v.  Strong,  343 

v.  Summers,  266 

v.  Sundius,  170 

Ly  sag  lit  v.  Bryant,  333,  341 

Lysle  v.  Beals,  525 

M. 

Mabbett  v.  White,  551 
Macbeth  v.  Haldimand,  180,  534 
MaeDouough  v.  Heyman,  548 
Mackenzie  v.  Scott,  179,  537 
Mackintosh  v.  Hay  den,  294 
Macklin  v.  Crutcher,               175,  177,  569 
Maclae  v.  Sutherland,    224,  565,  566,  567 
Macleod  v.  Snee,  141,  276 
Macv  v.  Kendall,  102,  277 
Maddux  v.  Simmons,  382 
Madison,  &c,  R.  R.  v.  Norwich  Sav- 
ing Society,  477 
Madison   Plank  Road   Co.  v.  Water- 
town  P.  R.  Co.,  477 
Magill  v.  Hinsdale,  195 
v.  Merril,  576 
Mahaiwe  Bank  v.  Douglass,  284,  285 
Mahan  v.  Sherman,  561 
Mahier  v.  Le  Blanc,  89 
Mahon  v.  Cormley,                406,  411,  412 
v.  Sawyer,  335 
Mahone  v.  Central  Bank,  262,  285 
Mahoney  v.  Ashlin,  350,  351 
v.  East  Holyford  Co.,  478 
v.  Fitzpatrick,  147 
Mining  Co.   v.  Anglo-Cali- 
fornia Bank,  470,  478 
Maiden  v.  Webster,  104,  222 
Maine  Mutual  Ins.  Co.  v.  Stockwell,    139 
Maingay  v.  Lewis,  226 
Mainwaring  v.  Newman,  560 
Maisonnaire  v.  Keating,  374 
Major  v.  Holmes,  422 
Majors  v.  McNeilly,  345 
Makepeace  v.  Moore,  609 
Maker  v.  Overton,  179 
Malbon  v.  Southard,  609 
Male  v.  Roberts,  30,  33 
Maloney  v.  Stephens,  373 
Manby  v.  Scott,  395 
Manchester  v.  Sahler,  438 
Mandeville  v.  Union  Bank,  168,  274 
v.  Welch,  275,  276 


Manhattan  Life  Ins.  Co.  v, 


PAGE 

Buck,  372 

Warwick.  372 
248,  249 
225,  226 
192,  194,  207 
50O 
95 
74 
:>77 
175.  554 
283,  286 
529 
67.  182 
132 


Maniort  v.  Roberts, 

Manley  v.  Boycot, 

Mann  v.  Chandler, 

v.  King, 

v.  Moors, 

v.  Sutton, 

Manning  v.  Gill, 

v.  Hays, 

v.  Norwood, 

Manufacturers'  Bank  v.  Barnes, 

v.  Follett, 

v.  Lamar, 

v.  Winship,  176,  ">72 

&c,  Bank  v.  Gore,        586 

Many  v.  Beekman  Iron  Co.,  82,  469 

Maples  v.  Wightman,  390 

Maraman  v.  Maraman,  154 

Marburg  v.  Lloyd,  478 

v.  Marburg,  42,  55 

Marc  v.  Kupfer,  125,  133 

March  v.  Clark,  405,  411 

v.  Ward,      176,  222,  567,  571,  572 

Marcv  v.  Township  of  Oswego,  491 

Mare  v.  Charles,  202,214 

Marine  Bank  v.  Berney,  126.  132 

v.  Clements,  212 

v.  Rushmore,  126 

of  Chicago  v.  Chandler.  132 

v.  Ogden,      132 

Insurance  Co.  v.  Haviside,       325 

Marion  R.  R.  Co.  v.  Dillon,  234 

v.  Hodge,  234 

Markham  v.  Hazeu,  566 

v.  Scruggs,  214 

Marks  v.  King,  526 

Marlow  v.  Pitiield,  392 

Marmon  v.  Marnion,  381 

Marrett  v.  Equitable  Ins.  Co.  134 

Marrigan  v.  Page,  108 

Marsh  v.  Brooks,  74.  24:; 

v.  Fulton  County,  489 

v.  Little,  S3,  480 

v.  Thompson  Nat.  Bank,  555,  576, 

58 1,  582 

Marshall  v.  Drescher,  166,  285,  294 

v.  Miller,  444 

v.  Russell,  9 1 

v.  Rutton,  426 

v.  Stevens,  434 

County  v.  Cook,  492 

Marston  v.  Allen,  333,  335 

Martin  v.  Boure,  350 

v.  Butler,  109 

v.  Byrom,  398 

v.  Cauble,  406 

v.  Chauntry,  129,  319 

v.  Coles,  513 

v.  Curd,  454 

v.  Fitch,  184 

v.  Hazard,  275 

v.  Hazard  Powder  Co.,  31 


Xlll 

CASES   CITED    I 

PAGE. 

Martin  v.  Kirk, 

594 

v.  Martin, 

24,  30,  31,  41 

v.  Mayo, 

397 

v.  Singleton, 

117 

v.  Walton, 

590,  593,  601 

Marvin  v.  McCullum, 

88,  333 

Marvine  v.  Bymers, 

473 

Marvlaud  Fertilzing  Co.  v.  Newman,  317 

Maskell  v.  ETaifleigh,  311 

Mason  v.  Kuckmaster,  276 

v.  Dousay,  16,  18,  24,  25,  30,  34,  54 

v.  Graff,  151 

v.  Hyde,  341 

v.  Metcalf,  113 

v.  Morgan,  459 

v.  Palton,  159 

v.  Pritchard,  95 

v.  Rumsey,  175,  178,  568 

Massie  v.  Belford,  147,  294 

Massinann  v.  Holscher,  345,  349 

Massy  v.  Building  Assoc,  476 

Mast  v.  Matthews,  111 

Master  v.  Kirton,  583 

Masters  v.  Barretto,  169,  232 

v   Miller,  99,  288 

Mathers  v.  Shank,  406 

Mathews  v.  Baxter,  385 

v.  Hall,  271 

v.  Norman,  315 

Matbewson  v.  Carman,  50 

v.  Sprague,  67 

Matlock  v.  Livingston,  276 

Matheney  v.  Guess,  460 

Matthewman's  Case,  440 

Matthews  v.  Crosby,  142,  144,  3i3 

v.  Houghton,  129 

v.  McStea,  374,  590 

v.  Red  wine,  134,  227 

v.  Walwyn,  74 

Matthiessen  v.  McMahon,  378 

Matthis  v.  Town  of  Cameron,       110,  143 

Mattison  v.  Marks,  147 

Maugham  v.  Hubbard,  331 

Mauklin  v.  Branch  Bank,  598 

Maule  v.  Crawford,  273 

Maupin  v.  McCormick,  150 

Man  ran  v.  Lamb,  244 

Mauri  v.  Heffernan,  69 

Mawman  v.  Gillet,  552 

Maxey  v.  Strong,  592 

Maxwell  v.  Gundrum,  75,  272 

v.  Van  Sant,  87,  292 

May  v.  Boisseau,  464 

v.  (assiday,  333 

v.  Hewitt,  188,  219 

v.  Kelly,  513 

v.  Landsdown,  129 

v.  May,  452 

v.  Miller,  62,  173 

Mayer  v.  Garber,  558,  574 

Mayhew  v.  Pentecost,  53 

v.  Prince,  179,  536 

Maynard  v.  Fellows,  174,  567 


r    VOLUME    ON'E. 

PAGE. 

Maynard  v.  Johnson,  :!28 

v.  Mier,  315,  316 

Mayo  v.  Chenoweth,  227,  229 

Mayor  v.  Ray,  110,  481,  482,  485 

&c,  v.  City  Bank,        154,  161,  303 

of  Little  Rock  v.  State  Bank, 

486,  506 

&c,  of  Ludlow  v.  Charlton,        82, 

467,  480 

&c,  of  Stafford  v.  Till,         82,  468 

W  e  t  u  m  p  k  a  v.  We- 

tumpka,  482 

Mays  v.  Manufacturers'  Nat.  Bank,      368 

McArthur  v.  Bloom,  428,  430 

v.  McLeod,  138,  283,  296 

McBean  v.  Morrison,  215 

McBroom  v.  Lebanon,  238,  239 

McCall  v.  Corning,  249 

v.  Taylor,  62.  290 

McCalla  v.  Ely,  124 

v.  McCalla,  161,  303 

v.  Rigg,  202 

McCallop  v.  Fluker,  170 

McCampbell  v.  McCampbell,  451 

McCane  v.  Fitch,  50 

McCarley  v.  Supervisors,  78,  81 

McCartney  v.  Smalley,  130 

McCarty  v.  Howell,  152 

v.  Mewhinney,  463 

McCauley  v.  Gordon,  266,  558,  569 

McChord  v.  Ford,  119 

McClain  v.  Weidemeyer,  418,  419 

McClanaghan  v.  Hines,  116 

McClae  v.  Sutherland,  174,  558 

McClellan  v.  Coffin,  1 30,  3 1 9 

v.  Reynolds,  205,  207 

v.  Robe,  194 

McClintick  v.  Cummins,  47 

McClure  v.  Bennett,  534 

v.  Harris,  419 

v.  Township  of  Oxford,         489 

McConeghy  v.  Kirk,  568 

McCormick  v.  Arnspiger,  371 

v.  Holbrook,  444 

v.  Littler,  379 

v.  Trotter,  128 

McCown  v.  Sims,  81 

v.  Wheeler,  288 

McCowin  v.  Cubbison,  591,  593 

McCoy  v.  Gilmore,  139,  295,  297,  304 

v.  Huffman,  402 

v.  Lockwood,  166,  285 

v.  Moss,  116 

v.  Washington  Co.,         74,  84,  228 

McCracken  v  City  of  San  Francisco,  526 

McCrary  v.  Caskev,  149 

v.  Slaughter,  562,  563 

McCreary  v.  Chandler,  187 

v.  Newberry,  147 

McCrillis  v.  Bartlett,  379,  386 

McCullough  v.  Moss,      470,  471,  514,  547 

McDaniel  v.  Mann,  611 

McDeed  v.  McDeed,  30 


CASES    CITED    IX    VOLUME    ONE. 


xliii 


McDoyal  v.  Yeomans, 

PAGE. 

272 

McDonald  v.  Elfes, 

309 

v.  Harrison, 

245 

v.  Yeager, 

106 

McDougald  v.  Rutherford, 

18, 

19,  30,  31 

McDowel  v.  Chambers, 

61 

McDowell  v.  Keller, 

1-27 

McDuff  v.  Beauchamp, 

413 

McElvain  v.  Mudd, 

324 

Mi-Fadden  v.  Vincent, 

382 

McF.trlan  v.  Stinson, 

185,  605 

McGavock  v.  Whitfield, 

611 

McGee  v.  Larramore, 

193,  207 

v.  Prouty, 

225 

McGehee  v.  Childress, 

117 

McGill  v.  Griffin, 

317 

McGinnis  v.  Commonwealth, 

383,  387 

McGovern  v.  Hoesback, 

325 

McGowen  v.  West, 

106 

McGrath  v.  Clark,  148,  166, 

284 

293,  294 

McGregor  v.  Cleveland, 

174 

,  566,  567 

McGrath  v.  Barnes, 

116,  184 

McGuire  v.  Calahan, 

385,  386 

McHenrv  v.  Davies, 

443 

v.  Dnffield,     189, 

190 

200,  205 

v.  Ridgely, 

241 

Mclntire  v.  Preston, 

471 

472,  478 

Mcintosh  v.  Lytle, 

228 

JMcKee  v.  Hamilton, 

567 

v.  Hicks, 

288 

v.  Vernon  County, 

486 

McKinney  v.  Brights, 

576 

v.  Miller, 

75 

McLaren  v.  Watson, 

272 

McLean  v.  Nichlen, 

293 

v.  Nugent, 

346 

McLearn  v.  Skelton, 

330 

McLure  v.  Longworth, 

158 

McMahon  v.  Lewis, 

414 

McMasters  v.  Reed, 

470, 

471,  483 

McMillan  v.  McNeil, 

55,  57 

v.  Richards, 

107 

McMinn  v.  Owen, 

131 

v.  Richmonds, 

393 

McNair  v.  Fleming, 

573 

McNairy  v.  Bell, 

170 

McNeil  v.  Tenth  Nat.  Bank 

347 

McNeilage  v.  Halloway, 

458,  465 

McNiach  v.  Ramsav, 

114,  157 

McNitt  v.  Hatch, 

172,  244 

McPherson  v.  Rathbone, 

591,  592 

McRaven  v.  McGuire, 

77 

McSherry  v.  Brooks, 

116 

McSparran  v.  Neely, 

90,  385 

McStea  v.  Matthews, 

370,  374 

McVeigh   v.  Bank  of  the 

31d 

Do- 

minion, 

374 

McVey  v.  Cantrell, 

446 

McWhirt  v.  McKee, 

548 

Meacham  v.  Pinson, 

315  j 

Meacher  v.  Fort, 

248 

Mead  v.  Hughes, 

429  j 

v.  Keeler, 

472 

PAGE. 

Mead  v.  Young,  251,  252 

Meador  v.  Dollar  Savings  Bank,  159,  160 
Meadows  v.  Cozart,  97 

Meads  v.  Merchants'  Bank,  521 

Means  v.  Swormstedt,  197,  20S 

Mears  v.  Graham,  137,  191,  194,  304 

Mechanics'  Bank  v.  Bank  of  Colum- 
bia, 82,  180,  217,  469,  480 
Mechanics'  Bank  v.  Earp,  536 
v.  Livingston,  600 
v.  New  York  &  N. 

H.  R.  R.,  10,  107 
v.  Schaumburg,  501 
v.  Strailon,  247 

v.  White,  100 

of   Alexandria    v. 
Bank  of  Columbia,  197, 

Mechanics'   and    Farmers'    Bank    v. 

Schuyler, 
Mechanics',  &c,  Ins.  Co. 

son, 
Mecutchen  v.  Kennady, 
Med  bury  v.  Hopkins, 
v.  Watrous, 
Meech  v.  Smith, 
Meed  v.  Keeler, 
Megginson  v.  Harper, 
Mehlberg  v.  Fisher, 
Melan  v.  Fitzjames, 
Melanotte  v.  Teasdale, 
Melledge  v.  Boston  Iron  Co. 

v.  Boston  Iron  Works, 
Mel len  v.  Moore, 
M'Elmoyle  v.  Cohen, 
Melvin  v.  Hodges, 
Menasha  v.  Hazard, 
Mendenhall  v.  Baylies, 
Menkens  v.  Heringhi, 
Menkins  v.  Lightner, 
Mercantile  Bank  v.  Cox, 

v.  McCarthy, 
Mercein  v.  Andrus, 
Mercer  County  v.  Hacket, 
Merchants'  Bank  v.  Central  Bank, 
Griswold, 


219 

293 
Richard- 

573 

575,  579 

52 

402 

189,  531 

483 

231 

311 

51 

106 

204,  514 

174 

194 

52 

69 

491 

333 

418 

385,  387 

572 

520 

555 

489 

182 

19,  504 

Marine  Bank,        520 

v.  McCall,  212 

v.  Rudolph,  520 

v.  South  wick,  44 

v.  Spicer,  63,  534 

v.  State  Bank,  324,  515, 

516,  519,  520 

Nat.  Bank  v.  Griswold,  28,  40 

v.  Levier,  316 

Meredith  v.  Hinsdale,  51,  78 

Merrill  v.  Town  of  Monticello,  483 

Merrit  v.  Pollys,  590,  598,  602 

Merritt  v.  Clason,  61 

v.  Cole,  73,  74,  511 

v.  Cornell,  80,  81 

ads.  Day,  415 

Messier  v.  Amery,  238 

Metcalf  v.  Cook,  434 


xliv 


CASES    I  [TED    IN    VOLUME   ONE 


Metcalf  v.  Cooke, 

Metropolitan  Hank  v.  Taylor, 
Meyer  v.  Atkins, 

v.  Baldwin, 

v.  City  of  Muscatine, 

v.  Haworth, 

v.  Graeber, 

v.  Hibsher, 
Midi  H  v.  Lagarde, 


PAGE. 

434 
439 
590 
513 
489 
425 
160,  307 
166 
161 


Mu-iiigiu  Bank  v.  Eldred,      87,  292,  585 

Ins.  Co.  v.  Leavenworth,        87, 

148,  287,  292,  293,  610 

Middlebury  College  v.  Chandler,  391 

Midland  R.  B.  Co.  v.  Hitchcock,  338 

Midway  Cotton  Mfg.  Co.  v.  Adams,      251 

Mifflin  v.  Smith,  175,  554,  572 

Milburn  v.  Codd,  559 

Millandon  v.  Carson,  414 

Millard  v.  Hewlett,  396,  402 

Milldam  Foundry  v.  Hovey,  82 

Milledge  v.  Gardner,  78 

Miller  v.  Austen,  106,  107,  108 

v.  Biddle,  315 

v.  Brenham,  51 

v.  Consolidation  Bank,      561,  588 

v.  Cook,  275 

v.  Delamater,  418 

v.  Excelsior  Stone  Co.,      114,  117, 

155 

v.  Finley,  384 

v.  Gamble,  62,  345,  346 

v.  Gardner,  316 

v.  Gaston,  272 

v.  Gilleland,  99 

v.  Hackley,  352,  358 

v.  Helm,  608 

v.  Lacy,  131 

v.  Manice,  577,  578 

v.  McKinnev,  119 

v.  Miller,     '  589 

v.  Moore,  548 

v.  Race,  9,  481,  543 

v.  Thomson,  263 

v.  Weeks,  231 

v.  White,  116 

v.Williamson,  434,610 

v.  Wiener,  407 

Milligan  v.  Lyle,  179,  217 

Mil  liken  v.  Whitehouse,  90 

Mill  ken  v.  Loring,  598 

Mills  v.  Bank,  100 

v.  Barney,  106 

v.  Carnly,  505 

v.  Gleason,  483 

v.  Hunt,  179 

v.  Kuykendall,  141,  142,  184 

v.  Williams,  348 

Minard  v.  Mead,  456 

Miner  v.  Paris  Exch.  Bank,  315 

Mineral  Point  R.  R.  Co.  v.  Banon,  35,  51 

v.  Barrow,  55,  56 

Minet  v.      ^bson,  248,  249 

Minnit  v      Whitney,  585 


PAGE. 

Mi  nock  v.  Sbortridge,  390- 

Minturn  v.  Fisher,  93 

Mitchell  v.  Baring,  162,  164 

v.  Byrne,  335 

v.  Culver,     85,  87,  283,  292,  293 

v.  Degrand,  98,  147 

v.  Hewitt,  126 

v.  Home  Ins.,  329 

v.  Kingman,  380,  382 

v.  Mitchell,  286,  292 

v.  Ostrom,  5 

v.  Ringgold,  98 

v.  Rome  R.  R.  Co.,  10S,  478 

v.  Smith,  444 

v.  Union  Life  Ins.  Co.,  79 

Mitchinson  v.  Hewson,  463 

Mix  v.  Madison  Ins.  Co.,  27,  44 

v.  State  Bank,  171 

Moblev  v.  Clark,  263 

v.  Ryan,  97 

Moffat  v.  Edwards,  160 

v.  McKissick,  565 

v.  Van  Millingen,  560' 

MofBtt  v.  Roche,  557 

Mogelin  v.  Westhoff  328,  589 

Mohawk  Bank  v.  Broderick,  94,  159 

Nat.  Bank  v.  Van  Slyck,        550 

Mohr  v.  Tulip,  378 

Moies  v.  Bird,  298 

Moiese  v.  Knapp,  290 

Molloy  v.  Delves,  138,  296 

Molton  v.  Camroux,  379,  380,  385 

Monget  v.  Penny,  104 

Monk  v   Clayton,  529 

Monroe  v.  Conner,  585 

Monson  v.  Drakeley,  104,  222 

Montague  v.  Church  School  District,    484 

v.  Perdone,  290 

v.  Perkins,  283  286 

v.  Reakert,  590 

Montgomery  v.  Agricultural  Bank,      434 

v.  Elliott,  168 

v.  United  States,  370,371 

v.  Whitbeck,  399 

Monument  Nat.  Bank  v.  Globe  Works,  470, 

471,  477,  478 

Moodie  v.  Morrall,  95 

Moody  v.  Threlkeld,  231,  283 

Moor  v.  Wilson,  190,  534 

Moore  v.  Anderson,  231 

v.  Backman,  595 

v.  Clopton,  35 

v.  Coleman,  431 

v.  Cooper,  2 1 5 

v.  Foster,  375 

v.  Gooch,  127 

v.  Hershey,  380 

v.  Leseur,  79,  80,  457 

v.  Maple,  285,  292 

v.  McClure,  182,  218 

v.  Miller,  347 

v.  Moore,  328 

v.  Pendleton,  292 


CASES   CITED    IX    VOLUME    ONE. 


xlv 


PAGE. 

Moore  v.  Quick,  828 
v.  Ryder,  638 
v.  Wilson,  187 
Moorehead  v.  Gilmore,  555 
Moran  v.  Commissioners  Miami  Co.,     83, 
468,  491,  515 
Moreau  v.  Branson,  418 
Morehead  v.  Gilmore,  175 
v.  Parkersburg,  166 
v.  Parkersburg  Nat.  Bank,  284, 
285,  286,  294 
Morford  v.  Farmers'  Bank  of  Sara- 
toga, 477 
Morgan  v.  Edwards,  319 
v.  Elam,  434 
v.  Graham,  329 
v.  Jones,  112,  276 
v.  Martien,  154 
Morley  v.  Culverwell,  560 
Morrill  v.  Aden,  395 
v.  Handy,  139 
Morris   Canal    and    Banking    Co.   v. 

Fisher,  83,  468 

Morris  v.  Bethell,  510 

v.  Clay,  385 

v.  Edwards,  128 

v.  Foreman,  511 

v.  Lea,  101,  103 

v.  Lynde,  313 

v.  Morris,  326,  328 

v.  Morton,  347 

v.  Poillon,  376 

v.  Preston,  340 

Morrison  v.  Bailev,  93 

v.  Lovell,  48,  376 

v.  Perry,  590,  599 

v.  Tavlor,  506 

y.  Thistle,  439,  451 

Morrow  v.  Whitesides,  463 

Morse  v.  Diebold,  511 

v.  Earl,  458 

v.  Green,  215,  500,  548 

y.  Wheeler,  400 

M  or  tee  v.  P^d  wards,  157 

Morton  v.  Naylor,  142 

v.  Steward,  393 

v.  Tenny,  148 

Mosby  v.  State  of  Arkansas,  289 

Mosely  v.  Taylor,  606 

Moses  y.  Comstock,  102 

v.  Fogartie,  455 

v.  Stevens,  389  j 

Mosher  v.  Rogers,  349 

Moss  v.  Averell,  470 

v.  Livingston,  194,  214 

v.  Oakley,  470,  471,  483 

v.  Rossie  Lead  Mining  Co.,         528  j 

v.  Witcher,  241 

Mostyn  v.  Fabrigas,  30 

Mott'v.  Havana  Nat.  Bank,  314,  319 

v.  Hicks,  182,  193,  470 

v.  Wright,  21,  333,  342 

Mount  v.  Zisken,  41 1 


PAGE. 

Mountstephen  v.  Brooke,  262 

Mount  Sterling,  &c,  Turnpike  Co.  v. 

Looney,  516 

Mowatt  v.  Howland,  601 

Mowbray,  Ex  parte,  367 

Move  v.  Waters,  462 

Mucklerov  v.  Bethanv,  81 

Mudge  v.  Bullock,  418 

Muhling  v.  Saltier.  232 

Muldrow  v.  Caldwell,  233 

Mulherrin  v.  Hannum,  170 

Mullen  v.  Morris,  40 

Muller  v.  Pondir,  336,  337 

Mumford  v.  Hawkins,  518 

M unger  v.  Shannon,  142 

Munn  v.  Baker,  601 

v.  Commission  Co.,  476 

v.  President,  &c,  Commission 
Co., 
Munro  v.  King, 
Munroe  v.  Cooper, 

y.  Guilleaume, 
Murchie  v.  Cook, 
Murdock  v.  Caruthers, 
Murphy  v.  Camden, 
v.  Collins, 
Murray  v.  Barlee, 

v.  Earl  of  Stair, 

v.  East  Ind.  Co., 


v.  Fisher, 

v.  Glasse, 

v.  Lardner, 
Murrell  v.  Jones, 
Murrill  v.  Handy, 
Murry  v.  Clayborn, 
Muzzy  v.  Knight, 
Mnth  v.  Dolfield, 
Mut.  Ins.  v.  C.  C.  &  C.  R.  R 
Mutual  Life  Ins.  v.  Hunt, 


513 
308 
588 
58 
133 
233 
577 
25 
427,  438 
349 
228,  469,  503, 
609 
52 
451 
83,  468,  494 
73,  75,  511,  545 
295 
276 
307 
78,  82,  468 
83 
379 


Nat.  Bank  v.  Richardson,        573 


Musgrave  v.  Drake, 

Musgrove  v.  Mcllroy, 

Musselman  v.  Mank, 

v.  McElhenny, 
v.  Oakes, 

Musser  v.  Johnson, 

Musson  v.  Lake, 

Myatts  v.  Bell, 

Myer  v.  Hart, 

Myers  v.  Friend, 
v.  Huggins, 
v.  Van  Wagoner, 

Mynderse  v.  Snook, 

Myrtle  v.  Beaver, 


N. 


Nabb  v.  Koontz, 
Nagle  v.  Horner, 
Nailor  v.  Bowie, 
Nance  v.  Lary, 


586,  587 
215 
330 
171 

231,  236 
218 
29,  37,  47 
593 
316 
494 
593 
422 
571 

180,  534 


426 

117,  156 

95 

284 


xlvi 


CASES   CITED    IN    VOLUME   ONE. 


PAGE 

Narragansett  Bank  v.  Atlantic,  Ac, 

Co.,  471,508,515 

Nash  v.  Towne,        52,  216,  331,  464,  456, 

507 


Nashua  F.  I.  Co.  v.  Moore, 

364, 

473 

Nasoa  v.  Dinsmore, 

89, 

344 

National  Bank  v.  Ingraham 

572 

v.  Matthews, 

476 

v.  Norton, 

593,  595, 

601 

v.  Peck, 

307 

of  Commonwealth  v. 

Law, 

579 

Glovers ville  v. 

Wells, 

477 

Jacksonville  v. 

Mapes, 

576 

New    England    v. 

Smith, 

420 

Orleans  v 

Fassett, 

528 

Salem  v. 

rtiomas, 

570 

Exch.  Bank  v.  H., 

P.  &  F. 

R.  R., 

■S3,  84, 

468 

Natal  Investment  Co.,  In  re 

267, 

469 

National  Life  Ins.  Co.  v.  Al 

en, 

238 

Mechanics'    Bank 

v.   Nat. 

Bank, 

509 

National  Pemberton  Bank  v 

.  Longee 

67, 

97 

\ 

.  Porter, 

365, 
473 

Securitv  Bank    v. 

McDon- 

aid, 

307, 

579 

National  Shoe,  &c,  Bank  v. 

Hertz, 

599 

State  Bank  v.  Ringel, 

125 

Union  Bank  v.  Landon, 

175, 

550,  554, 

585 

Nave  v.  First  Nat.  Bank, 

240 

v.  Had  ley, 

241 

Nay  lor  v.  Field, 

417 

Neal  v.  Erving, 

508 

509 

Neale  v.  Turton, 

233,  522, 

559 

Ned'  v.  Horner, 

297 

Neiffer  v.  Bank  of  Knoxvil 

e, 

517 

Neil  v.  Cummings, 

237 

Nelson  v.  Bridport, 

30 

v.  Cowing, 

292 

v.  Dubois, 

298 

v.  Eaton, 

472 

478 

v.  Manning, 

157 

v.  Miller, 

411 

v.  Serle, 

184 

605 

v.  Stocker, 

395 

396 

v.  Totterall, 

50 

Newbold  v.  Lamb, 

80 

Newell  v.  School  Directors, 

481 

New  England  Ins.  Co.  v.  De  Wolf, 

201 

Newliall  v.  Dunlap, 

179,  513, 

536 

New  Haven  Co.  v.  Quintarc 

328 

Newland  v.  Oakley, 

503 

Newman  v.  Kershaw,     23, 

24,  25,  26 

,41, 

42,45 

v.  Kettelle, 

100 

158 

v.  Richardson, 

554 

580 

PAGE. 

Newmarch  v.  Clay,  600 

New  Market  Sav.  Bank  v.  Gillet,  191 

New  Orleans  v.  Straus,  105 

Newsome  v.  Coles,  529,  583,  601,  603 

v.  Thorton,  513 

Newton  Wagon  Co.  v.  Diers,  279 

New  York  African  Soc.  v.  Varick,        252 
Floating    Derrick    Co.    v. 

New  Jersey  Oil  Co.,         479 
F.  I.  Co.  v.  Sturges,  470 

&c,  Ins.  Co.  v.  Bennett,     576 
Iron     Mine    v.    Citizens' 

Bank,  511,  547 

v.  Negaunee 

Bank,         522 

Life  Ins.,  &c,  Co.  v.  Beebe,  474 

Co.  v  Clopton,     372 

v.  Statham,    372 

&c,  Trust  Co.  v.  Helmer,    474 

Nichol  v.  Bate,  138,  296 

v.  Thomas,  378 

Nichol's  Admr.  v.  Davis,  142 

Nichols  v.  Bowes,  169 

v.  Diamond,       211,  214,  261,  533 

v.  Frothingham,  148,  240,  293,  516 

v.  Moody,  180,  181,  534,  535 

v.  Pool,  170 

v.  Sober,  586 

v.  Woodruff,  112 

Nightingale  v.  Withington,  365,  394 

Nicholson  v.  Combs,  334 

v.  Heiderhoff,  413 

v.  Patton,  175 

v.  Ricketts,   175,  177,  569,  571 

v.  Sedgwick,  271 

Nickelson  v.  Ingram,  415 

Nickerson  v.  Gilliam,  €12 

v.  Sheldon,  316 

Nicolet  v.  Pillot,  530 

Nicolls  v.  Rodgers,  53 

Nicols  v.  Allen,  69 

Nickson  v.  Broham,  529 

Niel  v.  Morley,  379 

Nimes  v.  Bigelow,  418,  461 

Nipp  v.  Dickey,  121 

Nispel  v.  Laparle,  430 

Nixon  v.  Palmer,  505,  525 

Noble  v.  McClintock,  574,  575 

Noblom  v.  Milbourne,  372 

Noe  v.  Hodges,  131 

v.  Preston,  128 

Noell  v.  Gaines,  303,  307 

Noland  v.  Ringgold,  266,  273 

Norfolk,  Ex  parte,  552 

Norris  v.  Harris,  30 

North  v.  Case,  337 

North  Am.  Coal  Co.  v.  Dyett,  443 

Northam  v.  Latouche,  385 

Northampton  Bank  v.  Pepoon,      516,  547 

Northern  Bank  v.  Johnson,  519 

North  River  Bank  v.  Aymer,        507,  546 

Northrop  v.  Sanborn,  139,  295 

Norton  v.  Allen,  75 


CASES    CITED    IX    VOLUME   OXE. 


xlvii 


p 

AGE. 

PAGE. 

Norton  v.  Ellam, 

157 

Oilman  v.  Moak, 

401 

v.  Downer, 

283 

O'Mealey  v.  Wilson, 

369 

v.  Pickens, 

571 

Onondaga  Bank  v.  Bates, 

50 

v.  Seymour, 

174, 

566, 

567 

County  Bank  v. 

De  Puy 

v.  Thatcher, 

554 

Ontario  Bank  v.  Hennessy, 

177,  570 

v.  Turvil, 

440 

v.  Schermerhorn, 

475 

Norwich  Bank  v.  Hyde, 

136, 

295 

Opdyke  v.  Merwin, 

27,  41 

Nott  v.  Watson, 

311 

Orcutt  v.  Hough, 

167 

Nourse  v.  Henshaw, 

420 

O'Reilly  v.  Mutual  Life  Ins.  Co 

372 

Novelli  v.  Rossi, 

58 

Oriental  Financial  Corp.  v. 

Overend,  225, 

Noxon  v.  De  Wolf, 

97 

226 

v.  Smith, 

236, 

266 

Orleans  v.  Piatt, 

491 

Noyes  v.  Blakeman, 

442 

Ormsbee  v.  Kidder, 

233,  560 

v.  Gilman, 

114, 

279 

Ormsby  v.  Kendall, 

190 

Nugent  v.  Hickey, 

508, 

513 

Orono  Bank  v.  Wood, 

25 

v.  Roland, 

137 

O'Rourke  v.  O'Rourke, 

31,  41 

Nunez  v.  Dautel, 

152 

Orr  v.  Union  Bank  of  Scotland, 

296 

Nunn  v.  Givhan, 

441, 

448 

Orrick  v.  Colston, 

284.  285 

Nussbaumer  v.  Becker, 

600 

601 

Ort  v.  Fowler, 

250 

Nutting  v.  Sloan, 

511 

Orvis  v.  Kimball, 

v.  Newell, 
Ory  v.  Winter, 

396,  398 

225 

17,  39 

o. 

Osborn  v.  Hawley, 
v.  Kistler, 

318 
73,  76- 

Oakeley  v.  Pasheller, 

226 

v.  Osborn, 

553  a 
130,  305 

Oakley  v.  Pound, 

438 

Osborne  v.  Fulton, 

128 

Oa^te  v.  Taylor, 

350 

v.  Kerr, 

181, 

534,  535 

Oates  v.  Nat.  Bank, 

118 

168 

171 

Osgood  v.  Maguire, 

48 

Oatman  v.  Taylor, 

110 

v.  McConnell, 

132 

Ubbard  v.  Betham, 

89 

v.  Pearson, 

23* 

O'Cailaghan  v.  Thomond, 

53 

v.  Toole, 

473 

Ocean  Nat.  Bank  v.  Williams, 

3 

351 

v.  Toplitz, 

473 

Ocoee  Bank  v.  Hughes, 

5 

Oskaloosa  College  v.  Hickock, 

303 

0' Daily  v.  Morris, 

431 

Osterhout  v.  Shoemaker, 

383 

Odd  Fellows  v.  First  Nat. 

Bank 

499 

Outcalt  v.  Van  Winkle, 

460,  464 

Odell  v.  Gray, 

12 

265 

Overend  v.  Mid  Wales  Ry. 

Co., 

470 

Odiorne  v.  Maxcy, 

509 

514 

Overman  v.  Grier, 

238 

v.  Odiorne, 

117 

Overton  v.  Bolton, 

21,  95 

v.  Sargent, 

305 

v.  Tyler, 

111,  318 

O'Donnell  v.  City  of  Philadelph 

ia, 

110 

Owen  v.  Barnum, 

130. 

v.  Sweeny, 

343 

v.  Caw  ley, 

438 

Offley  v.  Ward. 

564 

v.  Lavine, 

141 

Offutt  v.  Ayres, 

215 

v.  Long, 

390 

Ogden  v.  Blvdenburgh, 

426 

v.  Moody, 

34,  ■ 

v.  County  of  Daviess, 

487 

489 

v.  Wilkinson, 

223 

v.  Marchand, 

543 

Owens  v.  Dickenson, 

435 

v.  Raymond, 

190 

Owings  v.  Arnot, 

98 

v.  Saunders, 

55,  56,  57 

v.  Grubbs, 

219 

\.  Slade, 

122 

v.  Speed, 

515 

Ogilvie  v.  Foljambe, 

66 

Owsley  v.  Greenwood, 

330 

Oglander  v.  Baston, 

465 

v.  Phillips, 

528 

Ohio  Life  Ins.,  &c,  Co.,  I 

i  re, 

474 

Oxford  Iron  Co.  v.  Spradley, 

329,  470, 

v.  Treasurer  of  Lib< 

jrty  Town- 

478 

shi[>, 

110, 

481, 

524 

Ozeley  v.  Ikelheimer, 

440 

Olim  v.  Yung, 

135, 

139 

Okell  v.  Charles, 

212, 

261 

Olcott  v.  Little, 

215, 

216 

P. 

v.  Tioga  Nav.  Co., 

204 

v.  Tioga  R.  R., 

198, 

470 

Pace  v.  Welmending, 

232,  292 

Oliphant  v.  Mathews, 

176 

Pack  v.  Thomas, 

131 

Oliver  v.  Houdlet, 

392 

Packard  v.  Nye, 

191,  239 

Olney  v.  Chadsey, 

518 

Padtield  v.  Green, 

504 

v.  Wickes, 

181, 

534, 

535 

Page  v.  Lathrop, 

548 

\  I  v  i  i  i 


CASKS    CITED    IN    VOLUME    ONE. 


PAGE 

PAGE. 

Page  v.  Murrell, 

87,  88, 

292,  293 

Patterson  v.  Gile,                                     328 

v.  Page, 

28 

v.  Graves,                                 251 

Pah  Ira  an  v.  Taylor, 

569 

v.  Patterson,                             451 

Paice  v.  Walker, 

211 

v.  Poindexter,        107,  115,  311 

Paige  v.  Stone, 

511,  514 

Patton  v.  Hunt,                                         128 

Pain  v.  Pack  Mid. 

186,  224 

v.  Kinsman,                                  440 

Paine  v.  Drew, 

52 

v.  Shanklin,                                 283 

v.  Stewart, 

514 

Paul  v.  Berry,                                              180 

v.  Si  rand  Union, 

82,  468 

Paullette  v.  Brown,                                  543 

v.  Ringold, 

136 

Payne  v.  Bank  of  Bowling  Green,        172 

Palen  v.  Lent, 

444 

v.  Clark,                                           137 

Palfrey  v.  Portland, 

30 

v.  Flournoy,                                 608 

Palliser  v.  Ord, 

502 

Peacock  v.  Monk'                                    440 

Palmer  v.  Dodge, 

594,  595 

Peake  v.  Labaw,                                       405 

v.  Farrington, 

34 

Pearce  v.  Madison  R.  K.  Co  ,                471 

v.  Goodwin, 

57 

Pearl  v.  McDowell,                                  379 

v.  Grant, 

DO 

,  67,  223 

Pearsall  v.  Dwight,          36,  39,  51,  52,  53 

v.  Hummer. 

152 

Pearse  v.  Wei  born,                                  201 

v.  Jarmain, 

53S 

Pearson  v.  Bank  of  Metropolis,    166,  167 

v.  Manning, 

69 

v.  Garrett,                                   153 

v.  Marshall, 

292 

v.  Stoddard,                       148,  293 

v.  Nassau  Bank, 

516 

Pease  v.  Morgan,                                      550 

v.  Palmer, 

157 

v.  Pease,                  35,  182,  183,  218 

v.  Pratt, 

112,  156 

Peaslee  v.  Robbins,                          365,  381 

v.  Sargent, 

116 

Peasley  v.  Boatvvright,                      80,  276 

v.  Stephens, 

63, 

190,  568 

Peay  v.  Pickett,                                        129 

v.  Ward, 

134 

Peck  v.  Hozier,                                    52,  57 

Pardee  v.  Fish, 

106, 

108,  127 

Pecker  v.  Kennison,                                 39 

Parish  v.  Stone, 

280 

Pecks  v.  Mayo,                              38,  42,  57 

Parker  v.  Baker, 

393 

Peddie  v.  Donnelly,                                 309 

v.  Buries-,. 

577, 

578.  586 

Peele,  Ex  parte,                                        564 

v.  Cantield, 

553 

Peets  v.  Riley,                                           592 

v.  Carson, 

236 

Peltier  v.  Babillion,                                 231 

v.  Cousins, 

594 

Pelzer  v.  Campbell,                                  422 

v.  Cowan, 

425 

Pemberton  v.  Hoosier,                             115 

v.  Kane, 

444 

v.  Johnson,                            412 

v.  Kennedy. 

73,  74 

Pendergast  v.  Borst,                               447 

v.  Macomber, 

596,  598 

Pendleton  v.  Bank  of  Kentucky,  516,  519 

v.  Merrill, 

591 

v.  Gal  breath,                         405 

v.  Riddle, 

266 

v.  Knickerbocker  L.  I.  Co.,  319 

Parkin  v.  Carruthers, 

599 

County  v.  Amy,            483,  492 

Parkinson  v.  F Inch, 

171,  172 

Penn  v.  Hamlett,                                    288 

v.  Scoville, 

58 

Penn i man  v.  Meigs,                                   58 

Parks  v.  Cooke, 

303,  3U7 

Pennington  v.  Baehr,                          61,  66 

v.  Duke, 

74,  80 

Peniz  v.  Stanton,                                       182 

v.  Edge, 

169 

People  v.  Francis,                                    382 

v.  Ross, 

497 

v.  Gales,                                        330 

Parnell  v.  Phillips, 

568 

v.  Howell,                                         t> 
v.  Johnson,                           110,  523 

Parsons  v.  Jackson, 

166,  294 

Partridge  v.  Badger, 

470, 

515,  522 

v.  Kendall,                           395,  K96 

v.  Colby, 

2  2  2 

v.  McDermoit,                      276,  280 

v.  Davis, 

101,  103 

V.  Supervisors,                               1  10 

v.  Stocker 

430 

v.  Supervisors  of  El  Dorado,    543 

Pasmore  v.  North, 

92,  9 

v.  Wayneville,                               486 

P.issmore  v.  Molt, 

183 

Ex  rel.  Albany,  &c,  R  R.  Co  , 

Passuinpsic  Bank  v.  Goss, 

149 

v.  Mitchell,                                            4l<:; 

Pate  v.  Brown, 

76,  334 

People,  ex  rel.  Cairo,  &c.,  R.  R.  Co. 

Paterson  v.  Gandasequi, 

221 

v.  Supervisors  of  Jackson  County,    492 

v.  Zachariah, 

603 

People,  ex  rel.  Dunkirk,  &c,  R.  R. 

Pattee  v.  Greely, 

343 

Co.,  v.  Batchellor,                                 493 

Patten  v.  Moses, 

517 

Pepoon  v.  Stagg,                                       108 

Patterson  v.  Carrell. 

95,  97  , 

Perfect  v.  Musgrave.                        225.  226 

v.  Cave, 

403' 

Perkins  v.  Barstow,                                   67 

CASES    CITED    IN    VOLUME   ONE. 


xlix 


Perkins  v.  Boothby, 

PAGE. 

503 

v.  Elliott,' 

405,  423,  435 

v.  Kowland, 

405 

v.  Rogers, 

371 

Perkins'  Case, 

104 

Perreira  v.  Jopp, 

357 

Perrin  v.  Keene, 

590 

v.  Wilson, 

391 

Perring  v.  Hone, 

558 

Perry  v.  Crammond, 

339 

v.  Hodnett, 

225 

v.  Hyde, 

181,  534 

v.  Smith, 

129 

v.  Thompson, 

448 

Perry  man  v.  Greenville, 

329 

Peter  v.  Beverly, 

184 

Peterson  v.  Mavor,  &c,  of  New  York,  526 

528 

Petillon  v.  Lorden,  311 

Peto  v.  Revnolds,  101,  260 

Petty  v.  Fleishel,  139 

v.  Roberts,  396,  400 

Peyser  v.  Cole,  316 

Phelan  v.  Gardner,  385 

v.  Moss,  297 

Phelps  v.  Borland,  57 

v.  Brackett,  417 

v.  Phelps,  464 

v.  Town,  126 

Philadelphia  Bank  v.  Newkirk,  135 

Loan  Co.  v.  Towner,        475 

Philips  v.  East,  523 

Phillips  v.  Allan,  55 

v.  Dugan,  124 

v.  Frye,  451 

v.  Graves.  445 

v.  Hagadorn,  411 

v.  Hatch,  370,  374 

v.  Im.  Thurn,  247,  250,  364 

v.  Wicks,  119 

Philliskirk  v.  Pluckwill,  457,  458,  464 

Phipps  v.  Tanner,  139 

Phoenix  Bank  v.  Hussey,  3,  352 

Pickard  v.  Bank,  9 

Pickaway  Co.  Bank  v.  Prather,  476 

1'ickering  v.  Cording,  232 

Pickelts  v.  Pendleton,  167 

Pierce  v.  Burnham,  427 

v.  Insdeth,  49 

v.  Kittredge,  415 

v.  Richardson,  85,  88 

v.  Tobey,  397 

v.  Whitney,  94,  166,  167 

Pierson  v.  Dunlop,  141 

Pilcher  v.  Kerr,  446 

Pile  v   Pile,  465 

Pillow  v.  Roberts,  179 

Pilmer  v.  Branch  Bank,  133 

Pinard  v.  Klockman,  357 

Pindar  v.  Barlow,  159 

v.  Keliey,  102 

Pinkney  v.  Hall,  550 

Pintard  v.  Davis,  225 


PAGE. 

Pippen  v.  Wesson,  411,  435 

Pitcher  v.  Barrows,  233,  560,  596 

Pitman  v.  Breckenridge,  141 
v.  Kintner,        188,193,196,471, 
4S3 

Pitt  v.  Chappelow,  367,  394,  426 

v.  Smith,  385,  386 

Planters'  Bank  v.  Erwin,  514 

v.Evans,  234,263,311 

v.  Sharp,  472,  473 

Piatt  v.  Sank  Co.  Bank,  125 

Platzer  v.  Norris,  101 

Plessinger  v.  Dupuy,  330 

Plets  v.  Johnson,    "  232 

Plimley  v.  Westley,  273 

Plimpton  v.  Goodell,  184 

Plumb  v.  Niles,  115 

Plumer  v.  Lord,  415 

Poe  v.  Duck,  58 

Poett  v.  Stearns,  124 

Pogue  v.  Clark,  104,  223 

Poindexter  v.  Greenhow,  495,  496,  497 

Police  Jury  v.  Britton,  523 

Polhill  v.  Walter,  189,  531,  534 

Pollard  v.  Herries,  167 

Pollen  v„  James,  412 
Polo  Manufacturing  Co.  v.  Parr,  130,  300, 

305,  308 

Pomeroy  v.  Ains worth,  25,  31 

v.  Slade,  201 

Poock  v.  Lafayette  Building  Assoc,     476 

Pool  v.  Hines,  185 

v.  McCrary,  315 

Poole  v.  Wilkinson,  186 

v.  Williams,  611 

Pooley  v,  Harradine,  226 

v.  Whitmore,  583 

Poor  v.  Hazelton,  462 

Poore  v.  Magruder,  5U9 

Poorman  v.  Mills,  106,  108 

Pope  v.  Bank  of  Albion,  520 

v.  Hooper,  439 

Popplewell  v.  Wilson,  276 

Porch  v.  Fries,  389 

Porter  v.  City  of  Janesville,  266 

v.  Cumrnings,  550 

v.  McCoilum,  74 

v.  M linger,  36,  51 

v.  Nekervis,  240 

v.  Porter,  159 

Porterfield  v.  Butler,  424 

Porthouse  v.  Parker,  499 

Potter  v.  Brown,  56,  164 

v.  Kerr,  57 

v.  Merchants'  Bank,  184,  519 

v.  Tallman,  22.  44 

Potts  v.  Bell,  371 

v.  Coal  Company,  108,  312 

Powell  v.  Duff,  253,  289 

v.  Thomas,  67 

v.  Waters,  88,  89,  150,  333 

Power  v.  Hathaway,  52 

Powers  v.  Briggs,  191 


CASES    CITED    IX    VOLUME    ONE. 


PAGE. 

Powers  v.  Lvncli,  48,  50,  165 

Prather  v.  Zulauf,  99,325.  333 

1'raii  v.  Adams,  19,  42 

v.  Topeka  Bank,  241 

v.  Beaupre,  195,  220 

v.  ( 'base,  55 

v.  Eaton,  475,  47(5 

v.  Short,  475 

v.  Thomas,  74,  273 

Prendergrast  v.  Borst,  4'_i  4 

Prentice  v.  Achorn,  384 

1'icii  iss  v.  <  i raves,  348 

v.  Savage,  24,  165 

Prentz  v.  Simouson,  443 

Preseott  Bank  v.  Caverly,  403,  426 

v.  Brinslev,  .'ill 

v.  Flinn,  "  506,  512 

President,  &c,  Goshen  Turnpike  v. 

Hurtin,  276 

President,  &c,  v.  Minor,  46 

Preston  v.  Breed  love,  125 

v.  Dunham,  147 

v.  Hull,  84,  288 

v.  Missouri,  &c,  Lead  Co.,      499 

v.  Whitney,  115,  313 

Prestwick  v.  Marshall,  418,  426 

Prewitt  v.  Chapman,  227,  228 

Price  v.  Edmunds,  226 

v.  Mitchell,  165,  169 

v.  Page,  28 

v.  Taylor,  199 

v.  Teal,  135 

Priddy  v.  Henbry,  279 

Prigeon  v.  Smith,  121 

Prince  v.  Brunatte,  418,  426,  455 

v.  Crawford,  563 

Prindle  v.  Caruthers,  236 

Proctor  v.   Baldwin,  316 

v.  Sears,  396 

Produce  Bank  v.  Farnum,  58 

Prosser  v.  Allen,  180,  534 

Protection  Ins.  Co.  v.  Bill,  154 

Puckett  v.  Stokes,  570 

Pugh  v.  Cameron,  19,  27,  31,  41 

v.  Cameron's  Admr.,  39 

v.  McCormick,  324 

Puller  v.  Roe,  585 

Pulsifer,  In  re,  50 

Pursley  v.  Hays,  399 

v.  Ramsey,  585 

Putnam  v.  Crymes,  245,  267 

v.  Dike,  52 

v.  Sullivan,  138,  297,  544 

Pym  v.  Campbell,  345 


Qnarrier  v.  Colston,  18 

Quarterman  v.  Green,  257 

Quassaic  Nat.  Bank  v.  Waddell,  442 

Quimby  v.  Buzzell,  69,  72 

v.  Merritt,  130,  2o0 


Quin  v.  Sterne, 
Quisenbury  v.  Artis, 


PAGE. 

66,  67 
233 


R. 

Radford  v.  Canvile, 
v.  Westcott, 
Raelle  v.  Moore, 
Rahm  v.  Bridge  Co., 
Railurd  v.  Wood, 
tiaigauel  v.  Ayliff, 
Railroad  Co.  v.  Howard, 


416 

390 

100,  150 

97 

.  458 

141 

477 

Companies  v.  Schutte,  494 

Rainelaugh  v.  Champante,  40 

Kalli  v.  Dennistonn,  56,  360 

Ramot  v.  Schotenfels,  150 

Ramsbotham  v.  Cator,  544 

Rand  v.  Dovey,  73 

Randall  v.  Snyder,  207,  210 

v.  Trim  en,  531 

v.  Van  Vechten,       181,  193,  535 

Randolph  v.  Parish,  234,  263,  592 

Ranger  v.  Cary,  97 

Ranken  v.  De  Forest,  180 

Rankin  v.  Roler,  81 

v.  Sanders,  129 

Ranney  v.  Baeder,  493 

Ransom  v.  Loyless,  590 

v.  Stan  berry,  130 

Rape  v.  Heaton,  30 

Raphael  v.  Bank  of  England,  543 

Rapp  v.  Latham,  559 

Rathbon  v.  Budlong.  182,  218 

Rawlinson  v.  Stone,  457,  459,  609 

Rawson  v.  Curtiss,  511 

v.  Davidson,  73 

Ray  v.  Catlett,  89 

v.  Faulkner,  4 

v.  Tubhs,  396 

Raymond  v.  Crown  Mills,  221 

v.  Holmes,  28,  29,  40,  54 

v.  Middleton,  266,  274 

v.  Sellick,  280 

v.  State,  496 

Rayner  v.  Grote,  216 

Rea  v.  Owens,  97 

Read  v.  Buffalo,  110 

v.  Edwards,  20,  342 

v.  Legard,  •  379 

v.  McNulty,  310 

v.  Wheeler,  106 

v.  Wilkinson,  111 

Reagan  v.  Burton,  172 

Reardon  v.  Moriarty,  446 

Record  v.  Chisum,  236 

Rector  v.  Fornier,  279 

Reddick  v.  Jones,  46 

Redlich  v.  Doll,  166,  283,  294,  326 

Redlow  v.  Churchill,  583 

Redman  v.  Adams,  144 

lied  may  ne  v.  Burton,  336 


CASES    CITED    IN    VOLUME    ONE. 


Reed  v.  Batchelder, 

392 

Richards  v.  Globe  Ban] 

t, 

25,  42,  43 

v.  Bays, 

414 

v.  Proper, 

449 

v.  Boshear, 

400 

v.  Richards, 

116 

135 

,  451,  464 

v.  Burs, 

411,  449 

v.  Warring, 

v.  Cleman, 

422 

Richardson  v.  Boright, 

401 

v.  Deere, 

331 

v.  Daggett, 

465 

v.  Murphy, 

273 

v.  Ellett, 

89,  150 

v.  Reed, 

454 

v.  French, 

555 

v.  Roark, 

61 

v.  Huggins 

174,  566 

v.  Trentman, 

172 

v.  Lincoln, 

341 

v.  White, 

564 

v.  Strong, 

37'.' 

v.  Wilson, 

32,  90 

v.  Thomas, 

307,  308 

Rees  v.  Abbot, 

222,  224 

v.  Williamson, 

532 

v.  Berrington, 

225 

Richer  v.  Voyer, 

106,  151 

v.  Conoeocheague, 

286 

Rieketts  v.  Bennett, 

562 

v.  Jackson, 

327 

v.  Pendleton, 

349 

Reeside  v.  Knox, 

141 

Richmond  v   Heapy, 

575 

Regina  v.  Gompertz, 

331 

v.  Hersy, 

558 

v.  Bartlett, 

231 

v.  Patterson 

279 

v.  Harper, 

62 

Ac,  R.  R.  v 

Snead, 

108,  205, 

v.  Martin, 

221 

216 

Reid  v.  Degerer, 

403 

Richter  v.  Selin, 

92 

v.  Lamar, 

434 

Richwine  v.  Heim, 

461 

Reinskopf  v.  Rogge, 

385 

Ricord  v.  Bettenham, 

374 

Rekeart  v.  Sanford, 

455 

v.  Jones, 

328,  329 

Renshaw  v.  Mills, 

242 

Riddle  v.  Etting, 

592 

v.  Wills, 

497 

v.  Stevens, 

255,  292 

Reubin  v.  Cohen, 

576 

Rideout  v.  Bristow, 

280 

Revel  v.  Revel, 

464 

Ridge  v.  Cowley, 

52 

Rew  v.  Petet, 

195,  213 

Ridgewav  v.  Farmers'  Bank  of  Bucks 

Rex  v.  Bigg, 

499 

Co., 

516 

v.  Box,                     230 

,  251,  266,  272 

Ridgway  v.  Farmers'  Bank, 

501 

v.  Desperado, 

370 

Kidley  v.  Taylor,    550, 

558, 

577 

580,  586 

v.  Hawkswood, 

329 

Ridout  v.  Bristow, 

184,  605 

v.  Holt, 

601 

Biggin  v.  (Jollier. 

354 

v.  Hunter, 

262 

Riggs  v.  City  of  St.  Louis, 

279 

v.  Poolev, 

85 

Riley  v.  Dickens, 

136,  137 

v.  Randall, 

254.  290 

v.  Gerrish, 

67 

v.  Richards, 

254 

v.  Pierce, 

413 

v.  Tea g ue, 

329 

v.  Sharp, 

124 

Reynolds  v.  Richards, 

130 

Rindskopf  v.  Barrett, 

127 

v.  Wheeler, 

226 

Ring  v.  Foster, 

115 

Rhawn  v.  Grant, 

43 

v.  Jamison, 

396. 

Rhea  v.  Gibson, 

288 

Ringling  v.  Kohn, 

84,  545. 

v.  Rhenner, 

428,  430 

Rittenhouse  v.  Ammerman, 

185,  60  V 

Rhode  v.  Alley, 

97 

Rivers  v.  Thomas, 

68,  298 

Rhodes  v.  Gihbs, 

437,  448 

Rives  v.  Marrs, 

252 

v.  Webb, 

517 

Roach  v.  Ostler, 

234,  263 

Rhyne  v.  Wacaser, 

122 

Roaehe  v.  Hill, 

172 

Rice  v.  Chute, 

180,  531 

Roane  v.  Green, 

131 

v.  Cook, 

186,  226 

Roberts  v.  Tucker, 

296 

v.  Gove,                   104, 

209,  215,  219 

Robb  v.  Halsty, 

42 

v.  Hogan, 

234,  235 

Robb  v.  Mudge, 

590 

V.  Peet, 

3S0 

v.  Ross  County  Bank, 

519 

v.  Porter's  Admr., 

113,  141,  142 

Robbins  v.  Ealon, 

399 

v.  Ragland, 

116 

Roberts  v.  Adams, 

544 

v.  Railroad  Co., 

440 

v.  Austin, 

179, 

217,  536 

v.  Stearns, 

271 

v.  Beihell, 

89,  S 

v.  West, 

158 

v.  Button, 

190,  531 

Rich  v.  Enol, 

547 

v.  Lane, 

232,  234 

v.  Niagara  Sav.  Bank, 

217 

v.  McGrath, 

346 

v.  Starbuck,            246, 

253,  254,  291 

v.  Peake, 

112 

Richards  v.  Darst, 

333 

v.  Watkins, 

434 

lii 


CASES    CITED    IX    VOLUME    ONE. 


Roberts  v.  Wood, 
Robertson  v.  Allen, 
v.  Banks, 
v.  Bruner, 
v.  Levy, 
v.  Pope, 
v.  Sheward, 
Robins  v.  May, 
Robinson  v.  Bland, 


PAGE. 

346 
453 

186,  610 
410 
513 

21-5 

230 

114 

24,  234,  263 


v.  Chemical  Nat.  Bank,        504 

Ex  parte,  537,  599 

v.  < i randy,  99 

V.  Hamilton.  94 

v.  Internat.  Ins.  Co.,  373 

v.  Lair,  326 

v.  Reynolds,  429 

v.  Taylor,  591 

v.  Yarrow,  506 

Robison  v.  Lvle,  224 

Roby  v.  Phelon,  229,  232,  450 

Roche  v.  Campbell,  168 

v.  Roanoke  Seminary,  349 

Rockmore  v.  Davenport,  116 

Rockwell  v.  Elkhom  Bank,  519 

v.  Hunt,  326,  330 

Rodgers  v.  <  !oit,  534 

v.  Rosser,  1 16 

Rodocanachi  v.  Buttrick,  67 

Roe  v.  Hallett,  266 

Roffey  v.  Greenwell,  135,  153 

Rogers  v.  Batchelor,  575 

v.  Boardman,  116 

v.  Broadnax,  308 

v.  Buckingham,  541 

v.  City  of  Burlington,        486,  490 

v.  Coit,  568 

v.  Gibbs,  376 

v.  Hurd,  389,  390 

v.  March,  196,  208 

v.Maxwell,  129 

v.  Boston,  293 

v.  Smith,  309 

v.  Union  Stone  Co.,  212 

v.Walker.  382,383 

v.  Ward,  441 

v.  Ware,  248 

Roland  v.  Logan,  428,430 

Rollins  v.  Phelps,  178,501,532 

v.  Stevens,  581 

Rolston  v.  ('lick.  558,  573,  575 

Roman  v.  Terna,  109 

Rominger  v.  Keyes,  171 

Roney  v.  Winter,  188,  215 

Roof  v.  Stafford,  400 

Roosa  v.  Cist.  35,46,246 

Root  v.  Godard,  478 

Rose  v.  Houston,  461 

v.  Park  Bank,  47,  48 

v.  Rowcroft,  89 

v.  S.  A.  &  M.  G.  R.  R.,  155 

v    Thames  Bank,  96 

t.  Williams,  225 

Ross  v.  Bedell,  50,  79 


TAGE. 

Ross  v.  Brown,  181,  204 

y.  Doland,  284 

v.  Planters'  Bank,  100 

v.  Walker,  419 

Rosseter  v.  Cahlmann,  27,  54 

Kossiter  v.  .Marsh,  '279 

v.  Rossiter,       190,  503,  526,  531 

Until  v.  Colvin,  584 

Rothschild  v.  Currie,  24,  28,  50,  352 

v.  Raab,  406 

Round  v.  Donnel,  161,  308 

Roundtree  v.  Thomas,  463 

Ronquette  v.  Overman,  39,  50 

Rowe  v.  Williams,  170 

v.  Young,  165,  168,  169,  170 

Rowland  v.  Pluminer,  452 

Rowley  v.  Home,  601 

Royal  Bank  v.  Grand  Junction  R.  R..  78 

Burgh  of  Scotland,  Ex  parte,    247, 

249 
Rubidaux  v.  Vallie,  370 

Rucker  v.  Wadlington,  185 

Ruckmaboye  v.  Mottichund,  52 

Rnddell  v/Phalor,  171 

Ruff  v.  Bull,  100 

v.  Webb,  105 

Ruffin  v.  Mebane,  188,  500 

Ru 

170 
338 


^&les  v.  Keeler, 
v.  Patton, 


v.  Swanwick, 


Rumball  v.  Metropolitan  Bank,    107,  129 


393 

183,  206,  211 

454,  461 

457 

514 

212 

280 

138,  283,  296 

392 

105,  142 

135,  310,  376 

106 


Rundell  v.  Keeler, 
Rupert  v.  Madden, 
Russ  v.  George, 
Russell  v.  Brooks, 

v.  Drumtuoud 

v.  Folsom, 

v.  Hall, 

v.  Langstaflfe, 

v.  Lee, 

v.  Powell, 

v.  Russell, 

v.  Whipple, 

v.  Wiggin.  34 

Rutland,  &c,  R.  R.  Co.  v.  Cole,   239,  241 
v.  Woodruff,     24 
Rvan  v.  Mackmath,  583 

Ryder  v.  Wombwell,  391 

Ryhiner  v.  Feickert,  235,  .504 

Rymes  v.  Clarkson,  61 

Ry-nders  v.  Crane,  433 


Sackett  v.  Palmer,  155 

v.  Spencer,  106,  159 

Safford  v.  Wvckoff,       195,  203,  471.  483, 

514,  510 
Sage  v.  Sherman,  507 

Salamanca  Township  v.  Bank,  481 

Salem  Bank  v   Uloueester  Bank,  520 

Salinas  v.  Wright,  150,  159 


CASES    CITED    IX    VOLUME    OXE. 


Salmons  v.  Hoyt, 
•Salter  v.  Burt, 
Saltmarsh  v.  Tuthill, 
Samtuons  v.  Halloway, 
Samson  v.  Thornton, 
Samstag  v.  Conley, 
Samuel  v.  Marshall, 
Samuels  v.  Evans, 
Sanborn  v.  Little, 
v.  Neal, 
Sanders  v.  Anderson, 
v.  Bacon, 
v.  Blain, 
Sanderson  v.  Morgan, 
Sand  ford  v.  M  icicles, 
v.  Norton, 
v.  Sandford, 
Sandilamls  v.  Marsh, 
Sands  v.  N.  Y.  Life  Ins.  Co 

v.  Smith, 
Sanford  v.  Sanford, 
Sanger  v.  Sumner, 
San  Jose  Sav.  Bank  v.  Stone, 
Saratoga  Co.  Bank  v.  Pruyn, 
Sargeant  v.  French, 
Sarsfield  v.  Witherly, 
Sasscer  v.  Whitely, 
Saul  v.  Jones, 
Sauisbury  v.  Weaver, 
Saunders  v.  Garret, 
Bowes, 
v.  Griffiths, 
v.  Jackson, 
v.  Judge, 
v.  Piper, 
King, 
Med  bury, 
O'Neil,  " 
Rix, 
Walshe. 


Saunderson 


Savage 


PAGE. 

172 

94 

100,  343 

331 

6-7 

318 

384 

237 

273 

193,  210 

188 

305,  314 

563,  608 

370 

595 

67 

465 

559,  585 

372,  373 

20,  23,  40,  44 

235,  464 

96 

117 

408 

435 

365 

94 

169 

420,  441,  448 

462 

168,  169,  170 

525 

65,  66 

169,  170 

136,  137,  295 

461 

154 

32,  452 

190,  209,  523,  535 

472 


350, 


Savannah,  &c,  R.  R.  Co.  v.  Lancaster,  116, 

243 
Saville  v.  Robertson,  553,  554 

Savings  Hank  of  Cincinnati  v.  Benton,  518 
Savoye  v.  Marsh,  57 

Sawyer  v.  Lufkin,  379 

v.  Vanghan,  275,  280 

Sayer  v.  Chaytor,  222 

Sayers  v.  First  Nat.  Bank,  240 

Sav  re  v.  Flournoy,  462 

v.  Lucas,  73,  74.  77 

v.  Nichols,  198,  204,  213 

v.  Wheeler,  31,  41,  89,  343 

Saxton  v.  Johnson,  279 

Scaife  v.  Beall,  116 

Scanlan  v.  Cobb,  379 

Scard  v.  Jackson,  283 

Scarpellini  v.  Atcheson,  464 

Schaefer  v.  Bidwell,  195 

Schaeffer  v.  Ivory,  416,  441 

Schafroth  v.  A  nibs,  44n 

Schimmelpennick  v.  Bayard,  504 

Schlater  v.  Winpenny,  591 


545 
110,  481 
484,  517 


194 

253,  29 1 


327, 


BACK 

Schlattner  v.  Nickodemus,  414 

Schmidt  v.  Schmaelter,  67 

Schneider  v.  Norris,  65 

Schnell  v.  North  Side  P.  M.  Co.,  298 

Schnessler  v.  Watson,  131 

Schnier  v.  Fay,  131 

Schofield  v.  Lay,  55 

Schoharie  Co.  Bank  v.  Bevard,  167 

Scholetield  v.  Eichelberger,  371,  372 

Scholey  v.  Ramsbottom,  335 

Schoneruan  v.  Fegley,  591 

School  Directors  v.  Fogleman,      481,  489 
v.  Sippy,  506 

Dist.  v.  State, 

v.  State  Bank, 
v.  Stough, 
v.  Thompson, 
Town  of  Monticello  v.  Ken- 
dall, 
Schooler  v.  Tilden, 
Schoonmaker  v.  Roosa, 
Schultz  r.  Astley, 

v.  Herndon, 

Scipio  v.  Wright, 

Scott  v.  Baker, 

v.  Bevan, 

Scoville  v.  Canfield, 

Scott  v.  Colmesnil, 

v.  Johnson, 

v  Lord  Eburvr, 

v.  McLellan, 

v.  Otis, 

v.  Perlee, 

v.  Searles, 

v.  Siines, 

v.  Stevenson, 

Scribner  v.  Fisher, 

Scruggs  v.  Bracken,  77 

Scudder  v.  Clarke,  129 

v.  Gori,  411 

t.  Union  Nat.  Bank,     16,  17,  18, 

24,  34 

Scull  v.  Edwards,, 

v.  Roane, 
Sea  v.  Glover, 
Seabury  v.  Hungerford, 
Seacord  v.  Burling, 
Seals  v.  Wright, 
Searcy  v.  Vance, 
Searight  v.  Calbraith, 
Searle  v.  Galbraith, 
Sears  v.  Lawrence, 

v.  Trustees  Wesl.  Univ., 
v.  Wright,  142 

Seaton  v.  Scovilie, 
Seaver  v.  Colburn, 

v.  Phelps, 
Seay  v.  Bank  of  Tennessee, 
Sebree  v.  Dorr, 
Second  Nat.  Bank  v.  Lansing, 
v.  Muller, 
v.  Smoot 


280 
524 
328 
491 
194 

42 

51 
572,  600 
215 
531 
513 
408 

42 
608 
464 
511 

57 


232 
155 
154 
298 
159 
116 
120 
56 
379 
129 
105 
152 
31  e 
i9i 
380,  381 
253,  291 
147,  168 
110,  141 
447,  45:; 
19.  20,  22. 
40,  43,  95 


112, 


144, 


liv 


CASES   CITED    IN    VOLUME    ONE. 


Sedgwick  v.  Lewis, 
Seekell  v.  Fletcher, 
Bel  by  v.  Eden, 
Seldonridge  v.  Connable, 
St- It'  t.  King, 
Semnies  v.  City  Ins.  Co., 
Semple  v.  Morrison, 

v.  Turner, 
Sentance  v.  Poole, 
Sergeson  v.  Sealey, 
Serle  v.  Norton, 

v.  Waterworth, 


PAGE. 

;,.-)S 

176,  570 

165,  169 

85,  88,  99 

160 

370,  372 

394 

67 

377,  378,  380 

378,  383 

92,  93 

184,  605 


Sheridan  v.  Carpenter, 
Sherman  v.  Christy, 

v.  Goble, 
Sherrill  v.  Hopkins, 
Sherrington  v.  Yates, 
Sherwood  v.  Archer, 


PACK. 

194 
571 
229 

55,  57,  58 
460 
308,  437 


Serrell  v.  Derbyshire  Ky.  Co.,  199 

Sessions  v.  Mosely,  339 

Sewanee  Mining  Co.  v.  McCall,  513 

Sex  v.  Taft,  248 

Sexton  v.  Fleet,  419,442 

Sevbel  v.  Nat  Currency  Bank,  84,  494 

Seybert  v.  City  of  Pittsburg,  485 

Seyfert  v.  Edison,  31,  32,  450 

Seymour  v.  Continental  Life  Ins.,         157 

v.  Cowing,  345 

v.  Van  Slyck,  273 

Shackford  v.  Newington,  483 

Shackleford  v.  Hooker,  113,  117 

Shacklett  v.  Polk,  33 

Shaffer  v.  Shaffer,  90 

Shamokin  Bank  v.  Street,  128 

Shank  v.  Butsch,  64,  70 

Shanklin  v.  Cooper,  38 

Shannon  v.  Canney,  415,  437 

v.  Marselis,  74 

Sharp  v.  Bailey,  164 

v.  Davis,  42 

v.  Emmet,  179,  537 

v.  Proctor,  414 

Sharpe  v.  Bellis,  183 

Shattock  v.  Shattock,  430,  439 

Shattuck  v.  Eastman,  215 

Shaver  v.  Ehle,  69,  72 

v.  Ocean  Mining  Co.,  187 

v.  West,  112,  144 

Shaw  v.  Emery,  456 

v.  Harvey,  51 

v.  M.  E.  Society,  300,  306 

v.  Shaw,  159 

v.  Spencer,  242,  612 

v.  Stone,  23S 

v.  Trunsler,  157 

Sheffield  v.  Ladue,  190 

School  v.  Andress,  141,  484 

Sheets  v.  Pabody,  607 

Sheldon  v.  Clancy,  454 

v.  Haxton,  40,  41 

v.  Haxtun,  19;  42 

Shelton  v.  Bruce,  155 

t.  Darling,         196,  213,  214,  261 

v.  Gill,  316 

v.  Sherfey,  271 

Shenton  v.  James,  313 

Shepard  v.  Whetstone,  166,  285,  294 

Sheppard  v.  Dry,  177,  565 

v.  Graves,  85 


v.  Snow,         177,  207,  550,  555, 
558,  574 

Shi- Ids  v.  Niagara  Sav.  Bank,  217 

v.  Taylor,  142 

Shiff  v.  Shiff,  611 

Shillito  v.  Beineking,  24r 

Shipley  v.  Carroll,  338 

Shipman  v.  Allee,  417 

Shipton  v.  Thornton,  222 

Shirreff  v.  Wilks,  550,  553.  575 

Shiver  v.  Johnson,  64,  70,  72 

Shoe,  &c,  Nat.  Bank  v.  Dix,  183 
Shook  v.  Singer  Manufacturing  Co.,      34 

v.  Singer  S.  M.  Co.,  364,  474 

Shollenberger  v.  Brinton,  124,  125 

Short  t.  Abernethy,  130 

v.  Spoakman,  217 
v.  Trabue,                29,  37,  38,  47,  48 

Shortridge  v.  Macon,  370 

Shotts  v.  Boyd,  377 

Shotwell  v.  McKown,  187 

Shoulters  v.  Allen,  380 

Shropshire  v.  Burns,  389,  398 

Shryver  v.  Hawkes,  136,  295,  304 

Shultz  v.  Payne,  87,  292 

Shuman  v.  Reigart,  460 

Shuttlesworth  v.  Noyes,  462 

v.  Stephens,  262 

Sibley  v.  Phelps,  266 

Sibree  v.  Tripp,  108 

Sichel  v.  Borch,  335 

Sidle  v.  Anderson,  73,  277 

Siegfried  v.  Ludwig,  591 

Siftkin  v.  Walker,  177,  569 

Siggars  v.  Nicliolls,  165 

Sigourney  v.  Lloyd,  543 

Sill  v.  Leslie,  67 

Siiliman  v.  Fredericksburg,  &c,  R.  R. 

Co.,  489 

Silvers  v.  Foster,  581 

Silverstein  v.  Atkinson,  558 

Siniius  v.  Hervey,  288 

Simonds  v.  Heard,  181,  535 

v.  Strong,  599,  602 

Simonton  v.  Steele,  346 

Simpers  v.  Sloan,  411 

Simpson  v.  Garland,  191 

v.  Mouldeu,  127 

v.  Stackhouse,  166,  2S5,  294 

v.  White,  50,  51,  96 

Sims  v.  McLure,  379 

v.  Sims,  53 

Simson  v.  Whitney,  550 

Sinclair  v.  Baggaley,  89,  342 

v.  Johnson,  266 

Singer  Mfg.  Cc.  v.  Haines,  308 

Sinker  v.  Fletcher,  315 


CASES    CITED    IX    VOLUME    ONE. 


lv 


PAGE 

■Siordet  v.  Kuczynski,  353 

Site^s  Case,  460 

Sittig  v.  Birkestack,  253,  291 

Skelton  v.  Dustin,  49 

Skidraore  v.  Little,  74 

v.  Romaine,  379 

Skillen  v.  Richmond,  143 

Skinner  v.  Maxwell,  390 

Slack  v.  Highgate  Archway  Co.,  82 

Slacum  v.  Pomery,  37,  38,  41,  47,  54 

Slade  v.  Young,  312 

Slark  v.  Highgate  Archway  Co.,  467,  469 

Slawson  v.  Loring,  213,  4">4 

Slaymaker  v.  Bank  of  Gettysburgli,     460 

Sleighter  v.  Harrington,  605 

Slifer  v.  Howell,  489 

Slipher  v.  Gooch,  225 

Sloan  v.  McCarty,  319 

Slocum  v.  Hooker,  402 

Styles  v.  Wardle,  88 

Smalley  v.  Edev.  111,112 

y.  Wight,  230 

Smart  v.  Nokes,  331 

Smead  v.  Indianapolis  R.  R ,        470,  477 

Smiley  v.  Meir,  315 

Smilie  v.  Stevens,  113,  154,  155,  311 

Smith  v.  Alexander,  194,  220 

v.  Allen,  108,  412,  413,  424 

v.  Battens,  89 

v.  Bean,  91,  345 

v.  Bellamy,  264 

v.  Blagge,  30 

v.  Boehm,  112,  114 

v.  Bridges,  101,  227 

v.  Buchanan,  55 

v.  Carder,  283,  285,  286 

v.  Carter,  309 

v.  Case,  343 

v.  Chandler,  460 

v.Cheshire,  110 

v.  Clopton,  75,  135,  245 

v.  County  of  Clark,  228,  491 

v.  Craven,  175,  177,  571 

v.  Crooker,  288 

v.  Davis,  383 

v.  Dibrell,  612 

v.  Doak,  225 

v.  Edsjeworth,  342 

v.  Ellis,  142,  143,  144,  155 

v.  Eureka  Mills  Co.,  470 

v.  Evans,  401 

v.  Ealwell,  120 

v.  Ferrv,  97 

v.  Foster,  88,  343 

v.  Gibson,  509,  513 

v.  Giegrich,  L29 

v.  Gregorv,  233 

v.  Hall,    "  50 

v.  Hill,  175,  552 

v.  Inhabts.  of  Cheshire,       481,  543 

v.  Jarves,  69,  177,  571 

v.  Johnson,  472,  504,  568 

v.  Kendall,    135,  266,  272.  27:-!,  310 


Smith  v.  Kennedy, 
v    Lawson, 
v.  Lockridge, 
v.  Loomis, 
v.  Lord, 
v.  Lusher, 
v.  Marian, 
v.  Marsack, 
v.  Mayo, 
v.  McClure, 
v.  McKinney, 
v.  Mead, 
v.  Mercer, 
v.  Mobeily, 


PAGE. 

421,  443 

519 

138,  296,  297 

130 

99 

233,  555,  558,  560 

319 

365,  418,  426 

398 

229,  235,  270,  334 

125 

28 

357 

62 


v.  Muncie  Nat.  Bank,      24,  27,  41, 
42,  315 
v.  Mundy,  336 

v.  Nevlin,  97 

v.  Nightingale,  134,  320 

v.  Parsons,  56 

v.  Pickering,  367 

v.  Pickery,  609 

v.  Shaw,  42,  55 

v.  Sheldon  590 

v.  Silvers,  316 

v.  Sloan,  562 

v.  Smith,   35,  55,  57,  106,  136,  304, 

349 

v.  Spinolla,  51,  52 

v.  Stanger,  545 

v.  Turney,  97 

v.  Van  Blarcom,  150 

v.  Whiting,  563,  608 

v.  Williams,  421,  449 

v.  Winter,  593,  594,  596,  603 

v.  Witton,  69 

v.  Wood,  124,  141 

v.  Wyckoff,  339 

Smock  v.  Ripley,  J 11 

Smout  v.  Ilberrv,  534 

Smurr  v.  Forman,  141,  143,  266,  273 

Smyth  v.  Strader,  575 

Snaith  v.  Mingay,     22,  138,  287,  296,  336 

Snead  v.  Coleman,  185 

Snelling  v.  Howard,  178 

Snow  v.  Goodrich,  178,  179 

v.  Mather,  411,  412 

v.  Perkins,  49,  50,  51 

Snowhill  v.  Snowhill,  464 

Snyder  v.  Jones,  280 

v.  Oatman,  172 

Soares  v.  Glyn,  242 

Socie:e  Generale  v.  Bank,  357 

Society  for  Savings  v.  New  London,      83, 

481 
Solly  v.  Ratbbone,  513 

Solomons  v.  Bank  of  England,  539 

South  Carolina  Bank  v.  Case,  571 

S.  C.  &  St.  P.  R.  Co.  v.   County  of 

Osceola,  489 

Southcot  v.  Watson,  9 

South  Ireland  Colliery  v.  Waddle,        468 
South  wick  v.  Allen,  602 


Ivi 


CASES   CITED    IN    VOLUME   ONE. 


PAGE 

Sowerby  v.  Butcher,  178,  532,  530 

Sparenburgh  v.  Bannatyne,  370 

Sparrow  v.  Chisman,  558 

Spa aiding  v.  Evans,  235,  237 

Speake  v.  Barrett,  602 

v.  United  States,  289 

Spear  v.  Alexander,  327 

v.  Ladd,  517 

Spej  ring  v.  Zacharie,  106 

Specht  v.  Howard,  166 

Speelinan  v.  < 'ulbertson,  241 

Speer  v.  Post,  75 

Spencer  v.  Buchanan,  288,  295 

v.  Humiston,  414,  420 

Sperry  v.  Dickinson,  406 

v.  Horr,  310,  316,  326 

Spicer  v.  Smith,  547 

Spindler  v.  Grellett,  169 

Spitler  v.  James,  166,  172,  284,  285 

Spittle  v.  Lavender,  179,  200,  210 

Spooner  v.  Holmes,  494 

Sporrer  v.  Eifler,  330 

Sprague  v.  Fletcher,  5 

v.  Tyson,  94,  95 

Sprigg  v.  Bank  of  Mt.  Pleasant,  225 

Springer  v.  Foster,  58 

Springfield  Bank  v.  Merrick,  305 

Marine  Ins.  Co.  v.   Tin- 

cher,  132 

Sprowl  v.  Siinpkins,  243,  246,  271 

Sprowle  v.  Legge,  26 

Spurk  v.  Leonard,  581,  583 

Spyker  v.  Spence,  518 

Squire  v.  Wilton,  288 

Staats  v.  Hovvlett,  177 

Stabler  v.  Cowman,  81 

Stables  v.  Elv,  603 

Stackpole  v.  Arnold,  178,  217 

Stacy  v.  Baker,  36,  49 

v.  Kemp,  91 

Stagg  v.  Elliott,  542 

Stahl  v.  Berger,  253,  289,  291 

Stainback  v.  Read,  501,  508 

Stainer  v.  Tysen,  507 

Staley  v.  Hamilton,  439 

Stall  v.  Cassady,     ■  598 

v.  Catskill  Bank,  581,  584 

Stamford  Bank  v.  Ferris,  240 

Stanford  v.  Pruet,  21 

Stannus  v.  Stannus,  463 

Stan  wood  v.  Stan  wood,  465 

Staples  v.  Wellington,  382 

StapJeton  v.  Conway,  23,  29,  45 

Stapp  v.  Anderson,  171,  274 

Statin  v.  Town  of  Genoa,  489 

Starke  v.  Cheesman,  234,  263 

Starret  v.  Wynn,  408 

Star  Wagon  Co.  v.  Swezev,  582,  593,  596 

State  v.  Boies,  241,  497,  535 

v.  Brower,  102 

v.  Burton,  151 

v.  Cobb,  46,  83,  494,  496 

v.  Common  Council  of  Madi-on,  483 


PAGE. 

State  v    Corpening, 

127 

v.  Crawford, 

8 

v.  Dean, 

288 

v.  Dubuclet, 

110,  496 

v.  Hays, 

9 

v.Hill, 

328,  329 

v.  Huff, 

110,  481 

v.  Loomis, 

107 

v.  Peck, 

102 

v.  Pipper, 

288 

v.  Rickey, 

s 

v.  Shupe, 

130 

v.  Stratton, 

301 

v.  Taylor, 

316 

v.  Wilkins, 

9 

Bank  v.  Fox, 

184,  519 

v.  Jenk 

ins 

240 

v.  Kain 

519- 

v.  McCoy, 

385 

of  Ohic 

v. 

Fox, 

516 

Board  v.  Citizen* 

>',  &c, 

By 

Co.,  476 

Capitol  Bank 

v. 

rhomr 

son 

,           91 

Fire  Ins.  Co., 

En 

re, 

117 

of  Indiana  v. 

W 

jram, 

228 

Illinois  v. 

Delafield, 

496 

Minnesota,  ex  rel.  Cen.    R. 
R.  of  Minn.,  v.  Town  of  Clark, 
State  of  Missouri,  ex  rel.  St.  Joseph, 
&c,   R.   R.  Co.,   v.  County  Ct.   of 
Sullivan  Co  , 
State  of  Nevada  v.  Cleveland, 

Ohio   v.    Commissioners    of 
Hancock  Co., 
State  of  Ohio,  ex  rel.  Smead,  v.  Trus- 
tees of  Union  Township, 
State   of  Ohio  v.  Granville  Alexan- 
drian Society, 
State  of  Ohio  v. 

Township, 
State  of  Ohio  v 

Library  Co., 
State  Sav.  Bank  v.  Scott, 

of  Wisconsin  v.  Torinus, 
Statham  v.  New  York  Life  Ins.  Co., 
St.  Aubvn  v.  Smart, 
Steadman  v.  Duhamel, 
Stearns  v.  Burnham, 
v.  Houghton, 
v.  Stearns, 
Stebbing  v.  Spicer, 
Stebbins  v.  Union  Pacific  R.  R., 
Steel  v.  Davis  County, 
Steele  v.  Curie, 

v.  Harmer, 
v.  McDowell, 
v.  McElroy, 
Steenburgh  v.  Hoffman, 
Stegall  v.  Coney, 
Steinbeck  v.  Liberty  Township, 
Steininger  v.  Hoch, 
Steins  v.  Franklin  County, 
Stephens  v.  Graham, 


487 


487 
247 

489 

487 

474 
Trustees  of  Goshen 

484,  490,  492 
Washington  Social 

474 

423 

505 

372 

58ft 

354 

34,  48 

589 

464 

252 

141 

482 

19,  36.  51 

560 

185 

202 

410 

554,  586 

481 

66,  104 

487,  490 

98,  99 


v.  Reynolds,    176,  565,  568,  57: 


CASES    CITED    IN    VOLUME    ONE. 


IV11 


Stem  v.  Freeman, 

PAGE. 

392,  40' » 

Stetson  v.  Patten, 

190 

Stevens  v.  Androscoggin  W.  P. 

Co.,     117 

v.  Beals, 

418 

v.  Blunt, 

155 

v.  Hill, 

140 

v.  Jackson, 

394 

v.  Johnson, 

111 

v.  Mclntire, 

275,  280 

v.  Norris,                    19, 

36.  55,  56 

v.  Reed, 

441 

v.  Strang, 

247 

Stevenson  v.  King, 

57 

Stewart  v.  Anderson, 

345,  348 

v.  Eden, 

95,  167 

v.  Hidden, 

337 

v.  Jenkins, 

441,  445 

v.  Smith, 

97,  129 

Stickney  v.  Jordan, 

40 

Stillwell  v.  Craig, 

134,  154 

Stinison  v.  Whitney, 

233,  561 

Stix  v.  Matthews,                37,  46 

,  166,  277 

St.  James'  Church  v.  Moore, 

263 

St.  John  v.  Redmond, 

511 

St.  Joseph  Township  v.  Rogers, 

483,  489 

Stockdale  v.  Keyes, 

584 

Stoddard  v.  Harrington, 

56 

Stoddart  v.  United  States, 

373 

Stoessiger  v.  S.  E.  Ry.  Co., 

62,  290 

Stokes  v.  Brown, 

392,  398 

v.  Shannon, 

413,  447 

Stone  v.  Damon, 

383 

v.  Dennison, 

402 

v.  Ireland, 

249 

v.  Metcalf,                      72 

301,  302 

v.  Tibbetts, 

56,  57 

v.  Wood, 

211 

Stoneman  v.  Pyle, 

316 

Stoner  v.  Commonwealth, 

462 

Stoney  v.  American  L.  Ins.  Co., 

478 

Storm  v.  Stirling, 

230 

Storr  v.  Wakefield, 

318 

Story  v.  Baird, 

464 

Stout  v.  Cloud,                            85,  8 

Stover  v.  Hamilton, 

158 

Strader  v.  Batchelor, 

141,  144 

Strain  v.  Wright, 

401 

Straker  v.  Graham, 

358 

Stratton  v.  Allen, 

471,  483 

Strawbridge  v.  Robinson, 

354 

Streafield  v.  Halliday, 

224! 

Streeter  v.  Poor, 

509,  511 

Streit  v.  Waugh, 

102! 

Strieker  v.  Tinkham, 

24i 

Strickland  v.  Mansfield, 

85 

Stricklin  v.  Cunningham, 

62,  346 

Stroh  v.  Hinchman, 

512 

Strong  v.  Foster, 

225,  226  1 

v.  Riker, 

67 

v.  Smith, 

462 

Stroud  v.  Marshall, 

380 

Stuart  v.  Baker, 

401 

v   Kirkwall, 

426 

Studebaker  Mfg.  Co.  v.  Montgoraerv,  185, 

473 
Stuffier  v.  Puckett,  407 

Stalls  v.  Silva,  148 

Sturdevant  v.  Hull,  179,  194,  220 

Stnrgea  v.  Bank  of  Cireleville,  520 

v.  Crown inshield,  56 

Sturtevant  v.  Inhabitants  of  Liberty,   110, 

543 

v.  Jaques,  242,  612 

v.  Liberty,  481 

Stutzman  v.  Pryne,  545 

Styles  v.  Wardle,  90 

Suckley  v.  Furse,  375 

Sullivan  v.  Violett,  97,  98 

Summerbill  v.  Tapp,  226 

Sum  wait  v.  Ridgely,  194 

Supervisors  v.  Arrighi,  488 

of  Rensselaer  Co.  v.  Weed,  523 

v.  Schenck,  478,  492 

Surles  v.  Pipkin,  379 

Susong  v.  Williams,  324 

Sutton,  Ex  parte,  502 

v.  Gregory,  550,  586 

v.  Toomer,  147 

v.  Warren,  457 

Swan,  Ex  parte,  296 

v.  North  British  Australian  Co  ,  296 

v.  Steel,  550,  552,  571,  573,  577 

Swann  v.  Gauge,  462 

Swasey  v.  Vanderheyden,  393 

Swazey  v.  Allen,  71 

Sweat  v.  Hall,  450 

Sweeney  v.  Thickstun,  115,  318 

Sweet  v.  Bradley,  550 

v.  Chapman,  347 

v.  County  Commissioners,  482 

v.  Dodge,  41 

v.  Stevens,  345,  349 

Sweeting  v.  Fowler,  252 

v.  Halse,  331 

Sweetser  v.  French,        136,  273,  295,  298, 

304,  557,  581,  582,  583 

S wetland  v.  Creigh,  128 

Swift  v.  Whitney,  125,  126 

Swire  v.  Redman,  226 

Switzer  v.  Valentine,  412,  455 

Sykes  v.  Giles,  502 

v.  Mayor,  &c,  of  Columbus,       483 

Syme  v.  Butler,  181,  535 


T. 

Taber  v.  Cannon,  212,  261 

Taberrer  v.  Brentuall,  51,  52 

Taft  v.  Brewster,  194 

v.  Pike,  401 

v.  Pittsford,  110,  4s  1 

v.  Sergant,  400 

Tainter  v.  Winter,  23!» 

Tain  tor  v.  Prendergast,  217 

Talbot  v.  Seeman,  30 


lviii 


CASES    CITED    IN    VOLUME   ONE. 


PAGE. 

Tallassee  Mfg.  Co.,  In  re,  83 

Tailmadge  v.  Pleuover,  177 

Tally  v.  Tally,  379 

Talty  v.  Freedman'a  Trust  Co.,     110,  482 

Tannatt  v.  Rocky  Mtn.  Nat.  Bank,       179 

Tanner  v.  Hull,"  584 

v.  Hastings,  503 

Tappan  v.  Bailey,  ;">1- 

v.  Ely,  "  306 

Tarletoo  v.  Southern  Bank  of  Ala.,      375 

Tarr  v.  Williams,  434 

Tasker  v.  Bardett,  78 

Tassey  v.  Church,  184,  261,  605 

Tate  v.  Evans,  506 

Tatlock  v.  Harris,  248,  249,  250 

Tattersall  v.  Fearnley,  330 

Taunton  Turnpike  v.  Whiting,  238 

Tau  i)  v.  Drew,  126 

Taylor  v.  Atchison,  339 

v.  Bank  of  Illinois,  30 

v.  Binney,  271 

v.  Booth,  131 

v.  Carlile,  448 

v.  Croker,  394 

v.Curry,  112,313 

v.  Dansby,  395 

v.  Dobbins,  66 

v.  Dudley,  380,  382 

v.  Duncan,  327 

v.  Glaser,  78 

v.  Hillyer,  574 

v.  Jones,  540 

v.  Kinloch,  89 

v.  McLean,  215 

v.  Moseley,  294 

v.  Neblett,  120,  128 

v.  Newman,  234 

v.  Shelton,  183,611 

v.  Sip,  94 

v.  Snyder,  94,  162,  167 

v.  Strickland,  251 

v.  Surget,  609 

v.  Thomas,  345 

v.  Tompkins,  121 

v.  Turley,  133 

Teague  v.  Hubbard,  559,  560 

Teed  v.  Elworth,  402 

Temple  v.  Pomroy,  511 

v.  Pullenj  286,  287 

v.  Seaver,  596 

Tenipleton  v.  Cram,  458 

v.  Poole,  504 

Ten  Eyck  v.  Vanderpoel,  605 

Ten ue v  v.  Prince,  298 

Terrell  v.  Walker,  158 

Territt  v.  Woodruff;  30 

Terrv  v.  Fargo,  513 

Tevis  v.  Young,  62,  173 

Texira  v.  Evans,  84,  288,  289 

Thacher  v.  Churchill,  422 

v.  Dinsmore,  186,  275,  280 

Thackerav  v.  Hanson,  183 

Thatcher  v.  Bank  of  State  of  N.  Y.,    521 


PAGE. 

Thatcher  v.  Cannon,  413 

Thayer  v.  Buffum,  561 

v.  Elliott,'  34 

v.  Middlesex  Mut.  Fire  Ins. 

Co.,  515 

v.  Smith,  567 

The  Butchers'  Benevolent  Association 

v.  Crescent  City  Co.,  208 

The  People  v.  Bcistwick,  346 

Thibodeau  v.  Levassuer,  52 

Thickuesse  v.  Bromilow,       249,  554,  506, 

568,571 
Thing  v.  Libbey,  390,  392 

Third  Nat.  Bank  v.  Armstrong,  111,  113, 

115,  308 

v.  Blake,  436 

v.  Lange,  242 

v.  Snyder,  562 

of  Baltimore  v. 

Lange,  612 

Thomas  v.  Bishop,  60,  178,  213 

v.  City  of  Richmond,  485 

v.  Folwell,  434 

v.  Passage,  411 

v.  Relfe,  241,  607 

v.  Rossa,  129 

v.  Thomas,  452 

v.  Watkins,  333,  341 

Thomason  v.  Frere,  596 

Thomasson  v.  Boyd,  399 

Thompson  v.  Armstrong,  275 

v.  Bowles,  31 

v.  Edwards,  45 

v.  Elliot,  504 

v.  Hall,  225 

v.  Havelock,  538 

v.  Hoagland,  294 

v.  Houston,  157 

v.  Ketcham,  25,  29,  31,  42,  94, 

159,  161 

v.  Lay,  397 

v.  Maugh,  606 

v.  Oliver,  117 

v.  Percival,  601 

v.  Perrine,  110,  493 

v.  Sloan,  120 

v.  Strickland,  401 

v.  Tioga  R.  R.,  204 

v.  Wilson,  34,  48 

Thomson  v.  Chick,  447,  448 

v.  Lee,  83,  84 

v.  Lee  Co.,        83,  110,  468,  480 

Thorington  v.  Smith,  131 

Thornton  v.  Dick,  334  , 

v.  Illingsworth,  393 

v.  Rankin,  612 

Thorp  v.  Craig,  17,  24,  36,  49 

Thorpe  v.  Thorpe,  538 

Thrasher  v.  Tuttle,  456,  458 

Thrope,  Ex  parte,  573 

Thrupp  v.  Sears,  396 

Thurston  v   Lloyd,  41,  55,  175 

v.  Mauro,  182 


CASES    CITED    IX    VOLUME    ONE. 


lix 


PAGE. 

Tibbets  v.  Gerrisb,  129 

Ticknor  v.  Roberts,  50 

Ticonic  Bank  v.  Stackpole,  352,  353 

Tilden  v.  Barnard,  195,  196 

v.  Blair,  21,  27,  45 

Tiller  v.  Standley,  215 

v.  Whitehead,  500 

Tillinghast  v.  Holbrook,  417 

Tillman  v.  Ailles,  243,  271 

v.  Shackleton,  430 

Tillotson  v.  Tillotson,  22,  29 

Timbers  v.  Katz,  465 

Timp  v.  Doekham,  329 

Tippets  v.  Walker,  190,  191 

Titlow  v.  Hubbard,  116,  308 

Tittle  v.  Thomas,  231 

Titus  v.  Hobart,  52 

v.  Kyle,  209,  211 

Tobey  v.  Leunig,  100 

v.  Chipman,  327 

Tobler  v.  Stubbletield,  99 

Tod  v.  Wick,  102 

Todd  v.  Ames,  420,  448 

v.  Bank  of  Kentucky,    29,  166,  294 

v.  Lee,  430 

v.  Neal,  352 

Toledo  Agricultural  Works  v.  Heis- 

ser,  238 

Tolman  v.  Hanrahan,  568 

Tombeckbee  Bank  v.  Dumell,  590 

Tome  v.  Parkersburg  Branch  R.  R.,    522 

Tomkins  v.  Ashby,  109 

Tompkins  v.  Woodyard,  554,  583 

Tooke  v.  Newman,  238 

Tooker's  Case,  564 

Tootell,  Ex  parte,  150 

Topping  v.  Bickford,  515,  516 

Torry  v.  Dustin  Mont.  Assn.,  522 

Tousey  v.  Taw,  213 

Towle  v.  Larrabee,  343 

v.  Towle,  408,  459 

Town  v.  Wiley,  396 

Town  of  Arlington  v.  Hinds,  239 

Coloma  v.  Eaves,    483,  491,  493 

Duanesburg  v.  Jenkins,         493 

Easile  v.  Kohu,  83,  481 

Hackettstown     v.     Swack- 

hamer,  110,482,485 

Town   of  Middleport   v.   JEtna  Life 

Ins.  Co.,  489 

Town  of  Queensbury  v.  Culver,  493 

South  Ottawa  v.  Perkins,      483, 
489 
Springport  v.  Teutonia  Sav- 
ings Bank,  491 
Town  of  Venice  v.  Murdock,  493 
Towne  v.  Rice,       22,  44,  91,  95,  183,  312, 

354,611 

v.  Smith,  47,  56,  58 

Townsend  v.  Derbv,  276 

v.  France.  253,  291 

v.  Hubbard.  1ST 

v.  Jennison,  124 


PASE. 

Townsend  v.  People,  9 

Township  of  East  Oakland  v.  Skin- 
ner, 486,  489 
Townsley  v.  Sumrall,  16 
Tozer  v.  Saturlee,                                    383 
Trabue  v.  Short,                      37,  38,  47,  48 
Tracy  v.  Keith,                                         446 
v.  Talmage,                                    474 
Trader  v.  Chidester,                                 316 
Tradesman's  Bank  v.  Astor,                   183 
Nat.  Bank  v.  Green,        111, 
141 
Trask  v.  Roberts,                             209,  211 
Trasher  v.  Everlfart,                     36,  51,  80 
Travis  v.  Willis,                                       415 
Tread  well  v.  Archer,                     308,  436 
Treat  v.  Cooper,                                      313 
Trebilcock  v.  Wilson,    '          124,  125,  126 
Trecothick  v.  Edwin,                      166,  169 
Treuttel  v.  Barandon,                              543 
Trieber  v.  Commercial  Bank,           91,  97 
Triuibey  v.  Vignier,                      18,  35,  47 
Trimble  v.  Miller,                                    417 
Tripp  v.  Curtenius,                          106,  108 
v.  Bishop,                                     330 
v.  Swanzey  Mfg.  Co.,                   263 
v.  Swanzey  Paper  Co.,                507 
Trobridge  v.  Cushman,                   567,  572 
True  v.  Fuller,                                          272 
Trueman  v.  Hirst,                                  392 
Truesdell  v.  Thompson,                         245 
Trull  v.  Moulton,                                    330 
Trundy  v.  Farrar,                            499,  512 
Trustees  v.  Parks,                                   239 
of    Amherst    Academy    v. 
Cowles,                                               472 
Trustees  of  Cahokia  v.  Rautenberg,     183 
La  Grange  Inst.  v.  An- 
derson,                                                 392 
Trustees  of  Solon  v.  Rowell,                    71 
Tryon  v.  Oxley,                               184,  605 
v.  Sutton,                              457,  460 
Tucker  v.  Bradley,                         233,  341 
v.  English,                             73,  74 
v.  The  Justices,                          181 
v.  Maxwell,                                  156 
v.  Moreland,                       389,  402 
v.  Tucker,                                   159 
Mfg.  Co.  v.  Fairbanks,     194,  196, 
203 
Tuckerman  v.  Hartwell,        165,  300,  303 
Tuley  v.  McClung,                                  316 
Tullis  v.  Fridley,                                      451 
Turley  v.  Taylor,                                    133 
Turn  bow  v.  Broack,                                590 
Turnbull  v.  Thomas,                66,  166,  300 
v.  Trout,                                   499 
Turner  v.  Hayden,                                   169 
v.  Nye,                                       451 
Turner  v.  Peoria,  &c,  R.  R.  Co.,  109,  141 
v.  State,                                         330 
v.  Wilcox,                                     527 
Turton  v.  Benson,                                       74 


CASES    CITED    IN    VOLUME   ONE. 


Tuten 

Tutt  v 

v 

'futile 

Twitty 
Tylee 
Tyree 
Tyrell 

Co., 


v.  Stone, 
Addams, 

,  Hobbs, 

v.  Bartholemew, 
v.  Fowler, 
v.  Houser, 
v.  Yates, 
v.  Lyon, 


PAGE. 

72 

562 

205,  220,  535 

272 

456,  460 

81 

474 

576 


v.  Cairo  and  St.  Louis  R.  R. 

32,  46 


U. 


Ubsdell  v.  Cunningham, 
Uhler  v.  Browning, 

v.  Semple, 
Ulery  v.  Gin  rick, 
Ulen  v.  Kittredge, 
Uliner  v.  Reed, 


108,  151 
557 
30 
562 
524 
302 


Underbill  v.  Gibson,       181,  190,  192,  535 
v.  Phillips,  276,  279 

Underwood  v.  Dollins,  78 

Union  Agric.  Assoc,  v.  Neill,  325 

Bank  v.  Beirne,  501 

v.  Ridgely,  82,  469,  480,  499, 
508,  530 
Bank  v.  Willis,  67 

of  N.  Y.  v.  Molt,  502 

Bethel  v.  Sheriff;  92 

G.  M.    Co.  v.   Rocky    Moun- 
tain Nat.  Bank,  470,  471 
Union  Ins.  v.  Greenleaf,  313 
Mining  Co.  v.  Rocky  Moun- 
tain Nat.  Bank,  526 
Union  Nat.  Bank  v.  Underbill,    573,  579 
Trust  Co.  v.  Chicago,  109 
United  States  v.  Bank  of  Metropolis,  496 
v.  Barker,                 375,  496 
v.  Boice,                          497 
v.  Boxes  of  Arms,          370 
v.  Buford,                        267 
v.  Central  Nat.  Bank,     496 
v.  Grossmeyer,                 372 
v.  Isham,                         325 
v.  Lapene,                         373 
v.  Linn,  73 
v.  Nelson,                         288 
v.  Smith,                           143 
v.  White,         246,  266,  267 
Bank  v.  Bank  of  Georgia,  9 
v.  Binney,      176,  570 
v.  Fleckner,           519 
Exp.  Co.  v.  Haines,        331 
Unity  Banking  Assoc,  Ex  parte,          395 
University  v.  Finch,                                373 
Unwin  v.  Wolseley,                         180,  534 
Upham  v.  Prince,                                     271 
Upton  v.  Starr,                                          240 
Urquhart  v.  Thomas,                               446 
Urton  v.  Hunter,                     51,  52,  55,  58 
Usburne,  Ex  parte,                                  601 
Usher  v.  Dauncey,     87,  92,  253,  287,  293, 
587,  58S,  595 


I'srv  v.  Saulsbury, 


PAGE- 

254,  291 


V. 


Vacaro  v.  Tout'. 

Valentine  v.  Ford, 

v.  Holloman, 
v.  Packer, 

Vallett  v.  Parker, 

Van  Allen  v.  Humphrey, 

Van  Alstyne  v.  Surley, 


600' 
428 
228,  607,  609 
508 
345  347 
441 
32-1 
Van  Alstyne  v.  Van  Slyck,  21'*. 

Van  Araringe  v.  Morton,  288 

Van  Bokkelen  v.  Tavlor,  79,  80 

Van  Brunt  v.  Eoff,  91,  98,  99 

Van  Brunt  v.  Mather,  563 

Van  Deusen  v.  Sweet,  377 

Van  Duzer  v.  Howe,  138,  283,  296 

Van  Epps  v.  Van  Deusen,  461! 

Van  Eps  v.  Dillaye,  598 

Van  Etta  v.  Evenson,  253,  288,  291 

Van  Etten  v.  Hemann,  227 

Van  Horn  v.  Hanu,  379- 

Van  Hostrup  v.  Madison  City,  493 

Van  Kirk  v.  Skillman,  405 

Van  Leuran   v.   First  Nat.  Bank  of 

Kingston,  197,  217 

Van  Ness  v.  Forrest,  238 

Van  Patton  v.  Beals,  380,  381 

Van  Reinsdyke  v.  Kane,  51,  52 

Van  Schaick  v.  Edwards,  34 

Van  Steeuwyk  v.  Sackett,  111 

Van  Vacter  v.  Flack,  141,  142 

Van  Vechlen  v.  Smith,  505 

Van  Wagner  v.  Terrett,  141 

Van  Winkle  v.  Ketcham,  .  390 

Van  Zant  v.  Arnold,  24,  30,  48 

Vance  v.  McLoughlin,  462: 

v.  Wells,  424 

Vander  Donckt  v.  Thellerston,  170' 

Vanderheyden  v.  Mallory,  437 

Vandervire  v.  Ogburu,  85 

Vanderveer  v.  Wright,  276 

Varick  v.  Crane,  19,  23,  24,  35,  40,  51 
Vasse  v.  Smith,  395,  396' 

Vater  v.  Lewis,  239,  240' 

Vaughan  v.  Dean,  151 

v.  Fowler,  73' 

v.  O'Brien,  329 

Veal  v.  Hurt,  420 

Veasey  v.  Reeves,  151 

Veeder  v.  Town  of  Lima,  4S9 

Vent  v.  Osgood,  389,  4U2 

Vere  v.  Ash  by,  525,  552,  553,  556 

v.  Fleming,  585 

v.  Lewis,  248,  249,  250 

Vermilye  v.  Adams  Exp.  Co.,  84,  494 
Vermont  Central  R.  R.  Co.  v.  Clayes,  240 
Vernon  v.  Manhattan  Co.,  595 

Very  v.  Mc Henry,  57 

Vice  v.  Fleming,  557 

v.  Lady  Anson,  552 

Vinger  Manufacturing  Co.  v.  Haines^    130 


CASKS    CITED    IX    VOLUME    uNE. 


ki 


PAGE. 

Vinson  v.  Vives, 

469 

Vinton  v.  Peck, 

7 

0,  91,  344 

Violett  v.  Patton, 

283 

Vise  v.  Fleming, 

602 

Viser  v.  Rice, 

288 

v.  Scruggs, 

414 

Visher  v.  Webster, 

294 

Vliet  v.  Camp, 

25,  42,  < 

Voorhees  v.  Jones, 

175,  566 

Vorebeck  v.  Roe, 

329 

Vredenburg  v.  Lagan, 

581 

Vreeland  v.  Schoonmaker, 

466 

v.  Ryno, 

417 

Vulliamy  v.  Noble, 

600 

Vyse  v.  Clarke, 

62 

w. 

Waddill  v.  Ala.,  &c,  R.  R 

Co., 

476 

Wade  v.  Darrow, 

149 

v.  Withington, 

297 

Wadlington  v.  Covert, 

141,  142 

Wadsworth  v.  Sharpsteen, 

378 

383,  386 

v.  Sherman, 

378,  386 

Waggoner  v.  Eager, 

166 

294,  423 

Wagner  v.  Freschl, 

574,  598 

v.  Kenner, 

90 

Wagnon  v.  Clay, 

579 

Wailing  v   Toll, 

391 

Wainwright  v.  Straw, 

148,  293 

Wait  v.  .Maxwell, 

377,  378 

v.  Pomeroy, 

301 

v.  Thayer, 

579,  583 

Waite  v.  Foster, 

567,  596 

Waldo  Bank  v.  Lumbert, 

577,  584 

Waldron  v.  Yonni;, 

138 

293,  296 

Walker  v.  Bank  of  the  State  of 

-New 

York, 

188 

190,  214 

Walker  v.  Clay, 

161 

v.  Eber', 

284 

v.  Geisse, 

93 

v.  Kee, 

550,  576 

v.  Kimball, 

160 

v.  Patterson, 

185,  606 

v.  Simpson, 

427 

v.  St.  Louis  Nat.  Bank, 

522 

v.  Striive, 

70,  460 

v.  Swartwout, 

181 

534,  535 

v.  Turner, 

5 

v.  Wait, 

188,  233 

v.  Warrield, 

71 

v.  Woollen, 

152,  172 

Wallace  v.  Branch  Bank, 

507 

V.  Costar, 

434 

v.  Dyson, 

313,  320 

v.  Fin  berg, 

444 

v.  Jewell, 

104,  222 

v.  Kelsall, 

575 

v.  MeCounell, 

170 

v.  Morss, 

396 

v.  Rowley, 

406 

v.  Sampson, 

513 

v.  Wallace, 

547 

pag  i  ■: 

Waller  v.  Keyes,  555 

Wallis  v.  Lehman,  43,  349 

Walmslev  v.  Lindenberger,  39U 

Walnut  v.  Wade,  110,  243 

Walrad  v.  Petrie,  235,  236 

Walrod  v.  Manson,  309 

Walsh  v.  Blatchley,  357,  358 

v.  Dart,  30 

v.  Lennon,  550 

Walter  v.  Cubley,  169 

v.  Trustees,  180 

v.  Trustees  of  Schools,  527 

Walters  v.  Brogden.  85 

v.  McBee,  117,  156 

v.  Munroe,  510 

Walton  v.  Williams,  260 

Ward  v.  Bank  of  Kentucky,  508 

v.  Churn,  345,  349 

v.  Crotty,  454 

v.  Evans,  525 

v.  Latimer,  120 

v.  Oxford  Railway  Co.,  85 

v.  Tyler,  591 

v.  Williams,  284,  529 

Wardell  v.  Hughes,  273 

Warden  ».  Pattee,  528 

Wardens  v.  Moore,  234 

Warder  v.  Arell,  35,  42 

Wardrop  v.  Dunlop,  512,  529 

Wardwell  v.  Haight,  599,  600 

v.  Sterne,  106 

Ware  v.  City  Bank,  313 

v.  Kelly,  281 

Warren  v.  Brown,  127 

v.  Chapman,  71 

v.  Coombs,  352 

v.  Durfee,  153 

In  re,  566,  567,  570,  572 

v.  Lvnch,  51,  78 

v.  Paul,  331 

v.  Scott,  246,  271,  273 

Warrington  v.  Early,  305,  310 

Warwick  v.  Bruce,  389 

v.  Xoakes,  536,  537 

Washburn  v.  Alden,  505 

Washington  Co.  Bank  v.  Jerome,         149 

Mut.  Ins.  v.  Miller,  154 

Waterbury  v.  McMillan,  326,  328 

Waterman  v.  Yose,  284 

Waters  v.  Carleton,  141,  142 

Watervliet  Bank  v.  White,  183 

Watkins  v.  Bowers,  349 

v.  Crouch,  170 

v.  Halstead,  425 

v.  Kirkpatriok,  67 

v.  Maule,  609 

v.  Nash,  345 

v.  Vince,  509,  510 

Watroua  v.  Holbrook,  260 

Watson  v.  Bowne,  57 

v.  Dohertv,  488 

v.  Evans,'  236,  237 

v.  Heasel,  392 


CASES   CITED    IX    VOLUME   ONE. 


PAGE. 

PAGE. 

Watson  v.  Knightly, 

279 

Weston  v.  Myers,       61,  63, 

103, 

228,  253, 

v.  McLaren, 

275 

254 

286, 

287,  291 

v.  Mid  Wales  Ry.  Co., 

468 

Wetumpka,&c.,R.R.Co.v. 

Bing 

lam,  198, 

v.  Poulson, 

331 

218,  263 

v.  Russell, 

:;47 

Whaley  v.  Moody, 

581 

Way  v.  Batchelder, 

303 

Wharton  v.  Morris, 

119 

v.  Butterworth, 

167 

Wheatley  v.  Williams, 

327 

v.  Ilearne, 

99 

Wheaton  v.  East, 

389 

v    Peck, 

405,  449 

Wheeler  v.  Hughes, 

74 

\ .  Pierce, 

418,  461 

v.  Warner, 

157 

v.  Smith, 

148 

v.  Webster, 

260,  290 

Way  man  v.  Toneysou, 

256 

v.  Wheeler, 

609 

v.  Torreyson, 

329 

Wheelock  v.  Freeman, 

161,  303 

Wayne  Co.  Sav.  Bank  v.  Low, 

44,  45 

v.  Winslow, 

215 

Weare  v.  Gove, 

190 

Whelen  v.  City  of  Pittsbur 

?h, 

485 

v.  Sawyer, 

540 

Whidden  v.  Seelye, 

30 

v.  Sihool  District, 

484 

Whigham  v.  Pickett, 

324, 

327,  328 

Weaver  v.  Caldwell, 

97 

Whistler  v.  Forster, 

94 

v.  Carnal  I, 

502 

Winston  v.  Stodder, 

20 

Webb  v.  Burke, 

215 

Whitaker  v.  Brown,      175, 

554, 

570,  574, 

v.  Gay, 

448 

576,  578 

v.  Hazelton, 

437 

v.  Edmunds, 

280 

v.  Hoselton, 

441 

v.  Whitaker, 

465 

Webber  v.  Williams  College, 

504 

Whitcomb  v.  Smart, 

239 

Webster  v.  Webster,                452 

589,  601 

White  v.  Callinan, 

453 

v.  Woodford, 

380 

v.  Canfield, 

57 

Weed  v.  Clark, 

103 

V.  Cayler, 

178 

v.  Richardson, 

574 

v.  Friedlander, 

31,  41 

v.  Van  Houten, 

170 

v.  Hopkins, 

225 

Weeks  v.  Medler, 

308 

v.  Ledwick, 

276,  279 

v.  Propert, 

532 

v.  Madison, 

190,  533 

Weeman  v.  Anderson, 

433 

v.  McNett, 

441,  444 

Weid ler  v.  Kauffman, 

155 

v.  Palmer, 

383 

Wei  rick  v.  Mahoning  Bank, 

292 

v.  Richmond, 

125 

Weismer  v.  Village  of  Douglass 

492 

v.  Skinner, 

189 

215,  531 

Weith  v.  City  of  Wilmington, 

83,  481 

v.  Smith, 

114, 

117,  154 

Welch  v.  Lindo, 

280 

v.  Story, 

438 

Wei  ford  v.  Beazley, 

66 

v.  Tudor, 

593 

Wells  v.  Brigham, 

266,  313 

v.  Union  ins.  Co., 

596 

v.  Evans, 

584 

v.  Vt.  &  Mass.  R.  R 

.,   83 

,  84,  289, 

v.  Mastennar.,                550, 

577,  586 

468 

v.  Mayor,  &c.,  of  Kingston,        468 

v.  Weaver, 

97 

v.  Miller, 

569 

Whiteford  v.  Monroe, 

510 

v.  Siess, 

579 

v.  Burckmyer, 

286,  292 

v.  Supervisors, 

483 

Whiteman  v.  Childress, 

128, 

266,  269 

v.  Van  Side, 

122 

Whitesides  v.  Cannon, 

439,  440 

v.  Whitehead, 

352,  359 

Whiting  v.  Daniel, 

85,  288 

Welsh  v.  First  Div.  R.  R., 

84 

v.  Dewey, 

186 

Weltner  v.  Riggs,                  328, 

829,  331 

v.  Western  Stage 

Co., 

529 

Welion  v.  Adams, 

107 

Whitlock  v.  Underwood, 

159 

Wentworth  v.  Wentworth, 

390 

Whitman  v.  Leonard, 

570 

Wernse  v.  Hall, 

52 

Whitmore  v.  Nickerson,  63 

104, 

290,  304 

West  v.  Foreman. 

141,  142 

Whitney  v.  Dutch, 

397 

v.  Laraway, 

421 

v.  Snyder, 

284 

London  Com.  Bank  v.  Kitson,    189, 

v.  Stow, 

187,  193 

532 

v.  Sudduth, 

192.  208 

v.  Moore, 

395 

v.  Whitney, 

57 

v.  Penny, 

401) 

Whittemore  v.  Obear, 

347 

St.  Louis  Bank  v.  Shawnee  Bank,  519 

Whittle  v.  Wolfe, 

422 

Westcott  v.  Price,                   554, 

558,  559 

Whitling  v.  Daniel. 

87 

Western  R.  K.  Co.  v.  Taylor, 

39 

Whittington  v.  Clarke, 

77 

Wesigate  v.  Healy, 

235 

Whitwell  v.  Bennett, 

93 

Westmoreland  v.  Foster, 

612 

v.  Winslow, 

135 

CASES    CITED    IN    VOLUME    ONE. 


ki 


PAGE. 

VVhitworth  v.  Ballard,  595 

Wicks  v.  Mitchell,    '  422,  439,  448 

v.  Adirondack  Co.,  83,  468 

Wigan  v.  Fowler,  277,  475,  470 

Wiggins  v.  Dainrell,  273 

v.  Vaught,  141,  142,  151 

Wigglesworth  v.  Steers,  385 

Wightman  v.  Townroe,  606 

Wilamouicz  v.  Adams,  141 

Wilbour  v.  Turner,  243,  245 

Wilbur  v.  Lynde,  538 

Wilburn  v.  Greer,  120 

Wilcox  v.  Koath,  396,  398 

v.  Williams,  151,  167 

Wild  v.  Bank  of  Passamaquoddy,  519,  547 

v.  Bennards,  169 

Wilde  v.  Sheridan,  336 

Wilder  v.  Aldrich,  465 

v.  Cowles,  547 

v.  De  Wolf,        232,  246,  254,  292 

v.  Eichie,  415 

v.  Weakley,  378 

Wildes  v.  Savage,  231,  264 

Wiley  v.  Hunter,  412 

v.  Shank,  206 

Wilhelm  v.  Schmidt,     •  420 

Wilkins  v.  Pearce,  557 

Wilkinson  v.  Lutwidge,  174 

Wilks  v.  Back,  176,  178,  572 

v.  Eobiuson,  100 

Willard  v.  Boggs,  373 

v.  Eastham,  423 

v.  Stone.  389 

Willets  v.  Phoenix  Bank,  247 

Willey  v.  Bobinson,  326 

Williams  v.  Amis,  125 

v.  Avers,  263 

v.  Bacon,  216 

v.  Baker,  251,  294 

v.  Cheney,  514 

v.  Conner,  550 

v.  Creswell,  370 

v.  Donaldson,  434 

v.  Floyd,  72 

v.  Gilchrist,  574,  579 

v.  Haines,  51,  55 

v.  Harrison,  390,  393 

v.  Hay  ward,  419 

v.  Huguenin,  437 

v.  Jones,  52,  349 

v.  Keats,  601,  603 

v.  King,  445 

v.  Mobile  Savings  Bank,       .175 

v.  Moor,  389,  401 

v.  Bobbins,  182 

v.  Second  Nat.  Bank,  194 

v.  Sims,  120 

v.  Smith,  117 

v.  Starr,  77 

v.  Thomas,  564 

v.  Town  of  Duanesburg,        493 

v.  Urmston,  445 


PAGE. 

Williams  v.  Wade,  37,  38,  47 

v.  Walbridge,  573,  575 

v.  Waring,  165,  169 

v.  Weutworth,  379 

v.  Wilber,  411 

v.  Williams,  334 

Exr.  v.  Williams,  92 

Williamson  v.  Becklam,  434 

v.  Bennett,  113 

v.  Citv  of  Keokuk,  489 

v.  Dodge,  412,  415 

v.  Johnson,  221,  565 

v.  Smith,  139,  295 

v.  Watts,  393 

Willis  v.  Barrett,  251 

v.  Dvson,  585 

v.  Twambly,  394 

Willison  v.  Patteson,  371,  376 

Willoughbv  v.  Moulton,  64,  69 

v.  W'illoughby,  235 

Willsey  v.  Hutchins,  414 

Wilmarth  v.  Crawford,  478 

Wilson  v.  Barthrop,  1S9,  532,  533 

v.  Bates,  464,  466 

v.  Carey,  331 

v.  City  of  Shreveport,  482 

v.  Codinan,  279 

v.  Dvson,  557 

v.  Forde,  576,  578,  595 

v.  Kinsey,  138,  255,  291,  296 

v.  Lazier,  29,  36,  49 

v.  Nisbet,  384 

v.  Oldham,  ■>^- 

v.  Bichaids,  554 

v.  Stubs,  252 

v.  Tucker,  300 

v.  Tummon,                525,  553,  556 

v.  Vysar,  332 

v.  Whittall,  72 

v.  Williams,  581,  582 

S.  M.  Co.  v.  Fuller,  436 

v.  Moreno,  316 

Wilt  v.  Welsh,  395 

Wilthaus  v.  Ludecus,  431 

Winchell  v.  Carey,  343 

Windham  Co.  Bank  v.  Kendall,  557,  574, 

586 

Wingo  v.  McDowell,  129 

Winship  v.  Bank  of  the  U.  S.,  585,  587 

Winslow  v.  Brown,  56 

Winston  v.  Metcalf,  320 

Winter  v.  Rite,  223 

Winterbottom's  Case,  610 

Winthrop  v.  Jarvis,  605 

Wintle  v.  Crowther,      175,  552,  572,  574, 

578 

Wire  back  v.  First  Nat.  Bank,  381 

Wisdom  v.  Becker,  184,  604 

Wise  v.  Charlton,  306,  312 

Wiseman  v.  Easton,  550 

Wishart  v.  Downey,  462 

Witherspoon  v.  Musselman,  317 

Withington  v.  Herring,  502 


Jxiv                               CASES 

CITED    IX    VOLUME   ONE. 

PAGE. 

PAGE. 

Witte  v.  Derby, 

183 

Woolley  v.  Sargeant, 

104 

v.  Derby  Fishing  Co. 

195,  203 

Woolston  v.  King, 

389 

v.  Vincenot, 

107 

Worcester  Bank  v.  Wells, 

29 

v.  Williams,  87,  148, 

231, 

253,  264, 

Worden  v.  Dodge, 

141 

283, 

291 

292,  293 

v.  Salter, 

298 

Wolcott  v.  Standley, 

238 

Works  v.  Hershey, 

150,  328 

v.  Van  Santvoord, 

162 

Worley  v.  Harrison, 

111,  153 

v.  Van  Santvord, 

170 

Worrall  v.  Gheen, 

297 

Wolf  v.  Brower, 

537 

Worth  v.  Case, 

337 

Wolfe  v.  Jewett,              178, 

217 

,  220,  535 

Worth ington  v.  Jerome, 

58 

Womack  v.  Jenkins, 

167 

Worthy  v.  Clapp, 

463 

v.  Walling, 

132 

Wright  v.  Andrews, 

51 

Wood  v.  Allegheny  County 

488 

v.  Bartlett, 

54 

v.  Braddock, 

591 

v.  Bessman, 

538 

v.  Bullen, 

121,  124 

v.  Boyd, 

241 

v.  City  of  Louisiana, 

492 

v.  Brosseau, 

578,  580 

v.  Corl, 

31 

v.  Douglass, 

100 

v.  Fenwick, 

390 

v.  Dresser, 

446 

v.  Gibbs, 

18, 

19,  34,  36 

v.  Hart, 

125 

v.  Goodrich. 

149 

v.  Hay, 

541 

v.  Holbeck, 

576 

v.  Irwin, 

153,  313 

v.  Leslie, 

52 

v.  Leonard, 

395 

v.  Mytton, 

232 

v.  McFall, 

359 

v.  Price, 

125 

v.  Morse, 

67 

v.  Steele, 

99 

v.  Reed, 

9 

v.  Wellington,    253, 

254, 

287,  290, 

v.  Remington, 

17 

291 

v.  Steele, 

390,  392 

v.  Wood, 

235,  563 

v.  Walton, 

447 

Woodbridge  v.  Spooner, 

161 

v.  Wright, 

453 

v.  Wright, 

52 

Wrightson  v.  Pullan, 

594,  601 

Woodbury  v.  Roberts, 

150 

Wulschner  v.  Sells, 

333,  406 

v.  Woodbury, 

500 

Wyant  v.  Pottorff, 

316 

Wooden  v.  Wampler, 

411 

Wyman  v.  Gray, 

218 

Woodes  v.  Dennett, 

189,  533 

Wynne  v.  Calendar. 

58 

Woodfolk  v.  Leslie, 

104,  109 

v.  Jackson, 

18,35 

Woodford  v.  Dorwin,        88 

,90, 

334,  340, 
342,  594 

Woodhull  V.  Holme-. 

347 

Y. 

v.  Wagner, 

58 

W Itnan  v.  Booth  by, 

233 

Yale  v.  Dederer, 

423,  436 

v.  Chapman, 

464 

v.  Eames, 

596 

v.  York  and  Curnb.  R.  R.     78 

Yarborough  v.  Bank  of  England, 

Woodruff  v.  Hill, 

18,  26,  39 

Yates  v.  Boen, 

381,  385 

v.  Town  of  Okolona, 

4=6 

v.  Dalton, 

562 

v.  Trapnall, 

495,  497 

v.  Donaldson, 

225 

v.  Webb, 

102 

v.  Grove. 

140 

Woods  v.  North, 

317 

v.  Nash, 

227,  230 

v.  Parker, 

133 

v.  Sherrington, 

460 

v.  Riley, 

233 

v.  Valentine, 

544 

v.  Wilder, 

373 

,  374,  375 

Yauger  v.  Skinner, 

378,  380 

Woodward  v.  Drennan, 

100 

Yeatruan  v.  Cullen, 

36,  37,  49 

v.  Genet, 

101 

Yerger  v.  Foote, 

184,  6U4 

v.  Matthew.-, 

171 

,  172,  300 

Yingling  v.  Kohlhass, 

266 

v.  Winship, 

570 

York  v.  James, 

242 

Woodworth  v.  Bank  of  America 

,  162,  165, 

Yorks  v.  Peck, 

226 

169,  303 

Yorkshire  Banking  Co.  v. 

Beatson,      176, 

v.  Downer, 

590 

572,  577 

Wookey  v.  Pole. 

253,  291 

Young  v.  Bell, 

403 

Wool  bright  v.  Sneed, 

151 

v.  Chew, 

233,  560 

Woolen  v.  Whit  acre. 

171 

v.  Grote, 

296 

v.  Wise, 

171 

v.  Harris, 

21,37 

Wool  folk  v.  Bank  of  America, 

136,  295, 

v.  Scott, 

127 

304 

v.  Stevens, 

378 

CASES    CITED    IX    VOLUME    OXE. 


lxv 


Young  v.  Ward, 

v.  Weston, 
Yowell  v.  Dodd, 


Zachary  v.  Gregory, 


PAGE 

138,  236,  283,  296 

148 

193,  218 


612 


Ziegler's  Appeal, 
Zimmerman  v.  Anderson, 

v.  Rote, 
Zook  v.  Simonson, 
Zottman  v.  San  Francisco, 
Zouch  v.  Parsons, 
Zuel  v.  Bowen, 


PAGE. 

452 
318 
61,  301,  318 
171 
526 
390 
562 


COMMERCIAL  PAPER. 


CHAPTER  I. 

GENERAL  PRINCIPLES  AND  DEFINITIONS. 


1.  Commercial  paper — includes  what. 

2.  Negotiable  instruments. 

8.  Bills  of  exchange — Foreign — Inland. 

4.  Bills  of  exchange — Parties. 

5.  Acceptance — Acceptance  supra  protest. 

6.  Presentment  for  acceptance — Dishonor — Protest  and  notice. 

7.  Promissory  notes. 

8.  Checks.  .  •' 

9.  Bank-notes. 

10.  Letters  of  credit. 

11.  Certificates  of  deposit — Due-bills. 

12.  Corporation  bonds — Coupons.  ' 

13.  Transfer — Indorsement. 

14.  Holder — "Bona  fide  holder  for  value." 

15.  Consideration — Accommodation. 

16.  Maturity — Grace. 

17.  Presentment  for  payment — Payment. 

18.  Dishonor — Protest  and  notice. 

19.  Action — Procedure — Damages. 

§  1.  Commercial  Paper  is  rather  a  popular  than  a  technical 
expression,  often  used,  however,  both  in  statutes  and  in  de- 
cisions of  courts  to  designate  those  simple  forms  of  contract 
long  recognized  in  the  world's  commerce  and  governed  by 
the  law  merchant.  This  lex  mercatoria  or  common  law  of 
merchants  is  of  more  universal  authority  than  the  common 
law  of  England.  It  applies,  in  general,  to  bills  of  exchange, 
promissory  notes,  checks,  bank-bills  and  letters  of  credit. 
And  in  more  recent  times  its  principles  have  been  extended, 
in  part  at  least,  to  other  evidence  of  indebtedness,  such  as 
due-bills,  certificates  of  deposit  and  corporation  bonds. 

§  2.  Negotiable  Instruments. — These  instruments  may  be 
negotiable  in  the  legal  sense  of  the  term  or  non-negotiable. 


2  GENERAL    PRINCIPLES    AND    DEFINITIONS. 

To  the  latter  class  belong  those  which  by  reason  of  their 
form  or  character  possess  only  the  quality  of  transferability 
incident  to  all  simple  contracts.  Negotiable  instruments-,  on 
the  other  hand,  may  be  so  transferred  as  to  give  the  assignee 
greater  rights  than  the  assignor  himself  possesses.  In  such 
case  the  paper  becomes  in  the  assignee's  hands  a  valid  obliga- 
tion for  what  it  purports  on  its  face  to  be,  although  it  may 
have  been  without  consideration  or  subject  to  other  defense 
as  regards  the  payee  or  intermediate  holders. 

§  3.  Bill  of  Exchange — Foreign  or  Inland. — A  bill  of  ex- 
change is  an  unconditional  order  for  the  payment  of  a  certain 
sum  of  money  by  the  person  addressed  in  it,  to  the  person  in 
whose  favor  it  is  drawn.1     An  order  may  have  all  the  force 

1  Bill  of  exchange  defined. 

Blackstone. — "An  open  letter  of  request  from  one  man  to  another  desir- 
ing him  to  pay  a  sum  named  therein  to  a  third  person  on  his  account," 
2  Com.  466. 

Kent. — "A  written  order  or  request  by  one  person  to  another  for  the 
payment  of  money  at  a  specified  time  absolutely  and  at  all  events,"  3 
Kent  Com.  74. 

Byles. — "An  unconditional  written  order  from  A.  to  B.,  directing  B.  to 
pay  C.  a  sum  certain  of  money  therein  named,"  Byles  on  Bills  1. 

Chitty. — "An  open  letter  of  request  from  and  order  by  one  person  on 
another  to  pay  a  sum  of  money  therein  mentioned  to  a  third  person  on  his 
account,"  Chitty  on  Bills  1. 

Parsons. — "A  written  order  for  the  payment  of  money,"  1  Parsons  on 
Bills  and  Notes  52. 

Chalmers. — "An  unconditional  order  in  writing  for  the  payment  of  a 
sum  of  money  absolutely  and  at  all  events,"  Chalm.  Dig.  of  Law  of  Bills, 
Art.  1. 

Edwards  — "An  open  letter  directing  the  person  to  whom  it  is  addressed 
to  pay  the  sum  therein  specified  to  a  third  person  named  in  the  instrument 
on  account  of  the  writer  or  person  by  whom  it  is  drawn,"  1  Edw.on  Bills,  # 1. 

Daniel. — "An  open  letter  addressed  by  one  person  to  a  second,  directing 
him  in  effect  to  pay  absolutely  and  at  all  events  a  certain  sum  of  money 
therein  named  to  a  third  person  or  to  any  other  to  whom  that  third  person 
may  order  it  to  be  paid;  or  it  may  be  payable  to  bearer  or  to  the  drawer 
himself,"  1  Daniel  on  Negot.  Instruments  35. 

Bouvikr. — "A  written  order  from  one  person  to  another  directing  the  per- 
son to  whom  it  is  addressed  to  pay  to  a  third  person  a  certain  sum  of  money 
therein  named,"  Law  Diet. 

California  Civil  Code. — "An  instrument,  negotiable  in  form,  by  which 
one,  who  is  called  the  drawer,  requests  another  called  she  drawee,  to  pay  a 
specified  sum  of  money,"  Sec.  3171. 

English  Bills  of' Exchange  Act,  1882. — "An  unconditional  order  in 
writing,  addressed  by  one  person  to  another,  signed  by  the  person  giving  it, 
requiring  the  person  to  whom  it  is  addressed  to  pay  on  demand  or  at  a  fixed 
or  determinable  future  time  a  sum  certain  in  money  to  or  to  the  order  of  a 
specified  peisou,  or  to  hearer,"  Sec.  .'>. 


BILL   OF    EXCHANGE.  6 

of  a  bill  of  exchange  as  between  the  immediate  parties  to  it 
without  being  recoguized  by  the  law  merchant  as  a  negoti- 
able bill.  This  often  occurs  through  additions  or  restrictions 
contained  in  the  instrument,  directing  it  to  be  paid  out  of  a 
particular  fund  or  in  a  particular  currency  or  on  some  con- 
tingency. These  and  other  irregularities  in  form  will  be 
considered  hereafter.1 

Bills  of  exchange  are  either  foreign  or  inland.  Inland 
bills  are  drawn  and  payable  in  Great  Britain  (by  English 
law)  or  (by  American  law)  in  the  State  whose  jurisdiction  is 
invoked.  If  the  bill  is  either  drawn  or  payable  in  another 
State  or  country,  it  is  a  foreign  bill.2  The  United  States  are 
in  this  respect  foreign  to  one  another,  and  a  bill  drawn  in 
one  State  payable  in  another  is  a  foreign  bill.3 

1  Bill  of  exchange— Form. 

Exchange  for  £1,000.  New  York,  May  1st,  1884. 

Six  menths  after  date  of  this  first  of  exchange  (second  and  third  unpaid)  pay  to  the 
order  of  John  Bvles  one  thousand  pounds,  value  received. 

HENRY  GEORGE. 
To  Charing  Cross  Bank, 

London. 

Bills  of  exchange,  especially  inland  bills,  are  often  drawn  in  one  part 
instead  of  triplicates.  In  this  case  the  words  italicized  in  the  bill  are  of 
course  omitted. 

$1,000.  New  York,  May  1st,  1884. 

Ten  days  after  sight  pay  to  Mr.  John  Byles,  or  order,  one  thousand  dollars,  vahu 
received. 

Payable  at  the  First  National  Bank  of  Philadelphia. 

HENRY  GEORGE. 
To  Messrs.  Brown  &  Sons, 

Philadelphia. 

To  these  words  are  frequently  added  in  the  body  of  the  bill  directions  as 
to  place  of  payment  and  account  to  be  charged,  e.  g.  "payable  at  the  West- 
minster Bank,"  "charge  the  same  to  my  account,"  "charge  to  account  of 
A.  B." 

2  Bvles  397;  Chitty  14;  1  Daniel  8;  1  Edwards  \  8;  1  Parsons  55;  Storv  on 
Bills"?  465;  2  Blackstone  Com.  466. 

3Buckner  v.  Finley,  2  Pet.  586  (1829) ;  Dickens  v.  Bent.  10  lb.  572:  Bank  of 
United  States  v.  Daniel,  12  lb.  32;  Phoenix  Bank  v.  Hussev,  12  Pick.  483; 
Ocean  Nat.  Bank  v.  Williams,  102  Mass.  141  (1869).  "  We  are  all  clearly  of  the 
opinion  that  bills  drawn  in  one  of  these  States  upon  persons  living  in  any 
other  of  them  partake  of  the  character  of  foreign  bills  and  ought  so  to  lie 
treated.  For  all  national  purposes  embraced  by  the  federal  constitution  the 
States  and  the  citizens  thereof  are  one,  united  under  the  same  sovereign 
authority  and  governed  by  the  same  laws.  In  all  other  respects  the  States 
are  necessarily  foreign  to,  and  independent  of  each  other,"  Washington, 
J.,  in  Buckner  v.  Finley,  supra. 


4  GENERAL    PRINCIPLES    AND    DEFINITIONS. 

§  4.  Bill  of  Exchange — Parties. — The  person  by  whom  a 
bill  is  drawn  is  called  the  drawer  ;  the  person  on  whom  it  is 
drawn,  the  drawee;  the  person  in  whose  favor  it  is  drawn, 
the  'payee.  These  are  not  necessarily  three  distinct  persons. 
A  man  may  draw  a  bill  on  himself  or  make  it  payable  to 
himself.  The  drawee  becomes  an  acceptor  if  he  accepts  the 
bill.  The  payee  becomes  an  indorser  if  he  transfers  the  bill 
by  indorsement.  One  who  is  not  a  party  to  the  bill  as  drawer, 
drawee  or  payee  may  make  himself  liable  upon  it  as  a  guar- 
antor or  as  a  surety,  or  may  accept  it  "for  the  honor"  of 
another  party  and  become  an  acceptor  supra  protest.  In 
foreign  law  the  guarantor  of  a  bill  is  known  as  aval.  The 
bill  itself  may  suggest  persons  to  whom  application  shall  be 
made  on  the  drawee's  refusal,  i.  e.  "in  case  of  need"  or  "au 
besoin."  , 

§  5.  Acceptance — Acceptance  Supra  Protest. — The  accept- 
ance of  a  bill  of  exchange  is  the  drawee's  agreement  to  pay 
it  when  it  falls  due.1  An  agreement  on  the  part  of  a  stranger 
to  pay  the  bill  at  maturity,  if  the  drawee  does  not,  is  called 
an  acceptance  for  honor  or  an  acceptance  supra  protest? 

The  simplest  and  most  common  form  of  acceptance  is  by 
the  word  "accepted"  written  across  the  face  of  the  bill  over 
the  acceptor's  signature.  A  promise  to  accept  often  binds  the 
promissor  as  an  actua]  acceptance. 

§  6.  Presentment  for  Acceptance — Dishonor — Protest  and 
Notice. — The  holder  of  a  bill  may,  and  in  some  cases  must, 
present  it  to  the  drawee  for  acceptance.  The  time  and  man- 
ner of  presentment  are  regulated  in  most  countries  and  in 
many  of  the  United  States  by  statute.     On  the  drawee's 

1  Byles  1ST  ;  Chittv  318  ;  1  Parsons  2S1 ;  1  Edwards  g  606 ;  Gallagher  v.  Nich- 
ols, 60  N.  Y.  438  (1875) ;  Ray  v.  Faulkner,  73  111.  469  (1874).  "An  engagement 
to  pay  the  bill  in  money  when  due,"  Bouvier  Law  Diet.,  in  loco.  "A  promise 
to  pay  it  according  to  its  terms,"  Beaslev,  C.  J.,  in  Bonnell  v.  Mawha,  8 
Vr.  200. 

2  Form  of  acceptance  supra  protest. 

'.'Accepted  supra  protest  for  the  honor  of  A.  B.  and  will  be  paid  at  my  office  if  regu- 
larly presented  when  due.     John  Jones." 

'Accepted  S.  P.,  John  Jones." 

"Accepted  under  protest  for  the  honor  of  A.  B.  and  will  be  paid  for  his  account  if 
refused  when  due  and  regularly  protested.  '  John  Jones." 


PRESENTMENT  FOR  ACCEPTANCE.  D 

refusal  to  accept,  the  bill  should  be  presented  to  parties  desig- 
nated "au  besoin."  When  acceptance  is  refused,  protest 
must  be  made  in  case  of  foreign  bills,  and  in  the  case  of  all 
bills  notice  of  dishonor  must  be  given  to  the  other  parties 
who  are  liable  to  the  holder  upon  the  bill. 

Protest  is  a  formal  notarial  certificate  attesting  the  dishonor 
of  a  bill.  It  should  be  annexed  to  the  original  bill  or  a  copy 
of  it,  and  should  state  the  time,  place  and  manner  of  present- 
ment, to  whom  it  was  made,  what  answer  was  received,  and 
for  whom  and  against  whom  the  bill  is  protested.1 

The  protest  may  also  contain  a  notarial  certificate  of  the 
notice  of  dishonor  given  to  the  parties  entitled  to  such  notice. 
Notice  of  dishonor  is  in  general  necessary,  and  want  of  it 
will  discharge  other  parties  from  further  liability.  In  some 
of  the  United  States  the  notary's  certificate  of  notice  of  dis- 
honor is  itself  statutory  evidence  of  the  facts  stated  in  it. 
The  certificate  should  state  particularly  the  time,  place  and 
manner  of  giving  the  notice.     The  notice  should  identify 

1  Byles  262 ;  Benj.  Chalm.  Dig.  Art.  176  ;  Sprague  v.  Fletcher,  8  Oregon  367  ; 
Walker  v.  Turner,  2  Gratt.  534.  "A  notarial  act  made  for  want  of  payment 
of  a  promissory  note,  or  for  want  of  acceptance  or  payment  of  a  bill  of 
exchange,  by  a  notary  public,  in  which  it  is  declared  that  all  parties  to  such 
instruments  will  be  held  responsible  to  the  holder  for  all  damages,  exchanges, 
re-exchanges,  etc.,"  Bouvier  Law  Diet.  "Protest  in  a  more  popular  sense 
includes  all  steps  after  the  dishonor  of  negotiable  paper  necessary  to  charge 
a  party  to  it,"  Milligan,  J.,  in  Ocoee  Bank  v.  Hughes,  2  Coldw.  52  (1865). 

Form  of  protest  for  non-acceptance. 
United  States  of  America, 
State  of  New  Jersey, 

County  of  Hudson, 
On  the  first  day  of  December,  a.  d.  1884,  at  the  request  of  A.  B.  [holder's  name], 
I,  Charles  Henry,  a  notary  public  of  the  State  of  New  Jersey  duly  commissioned  and 
sworn,  did  present  the  original  bill  of  exchange  hereto  annexed,  (or  of  which  a  copy 
i'-  hereto  annexed,)  to  C.  D.  [name  of  drawee],  at  his  place  of  business  in  Jersey  City 
and  demanded  acceptance,  who  refused  to  accept  the  same.  Whereupon,  I,  the  said 
notary,  at  the  request  aforesaid  did  protest  and  by  these  presents  do  solemnly  and 
publicly  protest,  as  well  against  the  drawer  and  indorsers  of  the  said  bill  as  against 
all  others  whom  it  may  concern  for  exchange,  re-exchange  and  all  costs,  damages  and 
interest  already  incurred  and  to  be  hereafter  incurred  for  want  of  acceptance  of  the 
same. 

Thus  done  and  protested  at  Jersey  City,  in  the  county  aforesaid,  in  the  presence  of 
John  Doe  and  Richard  Doe,  witnesses. 

CHARLES  HENRY, 
—^-^  Notary  Public 

-<  L.  S.  >      fn  testimonium  veritatis. 


6  GENERAL    PRINCIPLES    AND    DEFINITIONS. 

the  bill  clearly,  state  its  dishonor  and   inform  the   party- 
addressed  of  his  liability  thereon.1 

§  7.  Promissory  Notes. — A  promissory  note  is  an  uncon- 
ditional promise  to  pay  a  certain  sum  of  money  to  the  person 
in  whose  favor  it  is  drawn.2     As  was  said  of  orders  for  the 

1  Form  of  notice  of  protest  for  non-acceptance. 
To  A.  B.: 

Please  lake  notice  that  a  bill  of  exchange  drawn  by  C.  D.  upon  E.  F.  for  one  thou- 
sand dollars,  dated  December  1st,  1884,  payable  three  months  after  sight,  in  favor  of 
(i.  II.,  and  indorsed  by  you,  has  been  presented  by  me  to  E.  F.  at  his  place  of  busi- 
ness,  No.  10  Broad  Street,  in  Jersey  City,  and  acceptance  being  duly  demanded  w as- 
refused,  whereupon  by  direction  of  the  holder  the  same  has  been  this  day  protested 
for  non-acceptance  and  you  are  held  liable  therefor. 

CHARLES  HENRY, 

Jersey  City,  December  loth,  1884.  Notary  Public. 

Form,  of  notary's  certificate  of  notice. 
United  States  of  America,  ^ 
State  of  New  Jersey,       >ss. 

County  of  Hudson,  J 
I,  Charles  Henry,  a  notary  public  of  the  State  of  New  Jersey,  duly  commissioned  and 
sworn,  do  hereby  certify  that  on  the  fifteenth  day  of  December  A.  D.  1884,  due  notice  of 
the  protest  of  the  annexed  bill  of  exchange  (or  bill  of  exchange  of  which  a  copy  is  hereto 
annexed),  was  served  upon  the  drawer,  C.  D.,  personally  at  his  residence,  No.  10  Broad 
Street,  in  Jersey  City  ;  and  upon  the  indorser,  A.  B.,  by  putting  the  same  into  the  post 
office  directed  to  him  at  New  Haven,  Conn.,  said  place  being  the  reputed  residence  of 
said  A.  B.,  and  the  post  office  nearest  thereto,  and  said  notice  being  mailed  at  Jersey 
City  and  the  postage  prepaid. 

Witness  my  hand  and  official  seal,  at  Jersey  City,  the  fifteenth  day  of  December, 
A.  D.  1884. 

CHARLES  HENRY, 
■ — *— *  Notary  Public. 

{-} 

As  has  been  said,  the  substance  of  this  certificate  may  be  incorporated 
into  the  certificate  of  protest. 

If  the  party  to  be  notified  was  absent,  this  should  appear.  If  he  could 
not  be  found,  it  should  appear  that  diligent  inquiry  had  been  made.  If 
formal  protest  is  unnecessary,  as  in  the  case  of  inland  bills,  and  is  omitted. 
Notice  of  dishonor  and  the  certificate  of  giving  such  notice  should  be  sub- 
stituted for  notice  of  protest. 

2  Promissory  note  denned. 

Blackstone. — "A  plain  and  direct  engagement  in  writing  to  pay  a  sum 
specified  at  a  time  therein  limited  to  a  person  therein  named,  or  sometimes 
to  his  order  or  often  to  the  bearer  at  large,"  2  Com.  467. 

Kent  (following  Bayley). — "A  written  promise  by  one  person  to  another 
for  the  payment  of  money  absolutely,  at  a  specified  time,  and  at  all  events," 
3  Kent  Com.  74. 

Byle's. — "An  absolute  promise  in  writing,  signed  but  not  sealed,  to  pay  a 
certain  specified  sum  at  a  time  therein  limited,  or  on  demand,  or  at  sight,  to 
a  person  therein  named  or  designated,  or  to  his  order,  or  to  the  bearer," 
Byles  5. 

Chitty. — "A  promise  or  engagement  in  writing  to  pay  a  specified  sum  at 


PROMISSORY    NOTES.  7 

payment  of  money,  a  promise  may  have  the  effect  of  a  note 
as  between  the  immediate  parties  to  it  and  yet  lack  the 
requisites  of  a  negotiable  promissory  note  by  reason  of  addi- 
tions, conditions,  restrictions  or  uncertainties  contained  in  it. 
The  requisite  form  of  a  negotiable  note  will  be  considered 
hereafter.1  The  person  who  gives  the  note  is  called  the 
maker.  The  maker  and  the  payee  are,  in  general,  the  usual 
and  only  original  parties  to  a  note.  It  may,  however,  be 
drawn  payable  to  the  maker's  own  order  and  take  effect  only 
on  indorsement  and  delivery  by  him.  And  it  may  contain 
contracts  of  guaranty  by  third  persons  indorsed  or  written 
on  its  face. 

a  time  therein  limited  or  on  demand,  or  at  sight,  to  a  person  therein  named 
or  his  order,  or  to  the  bearer,"  Chitty  585. 

Daniel. — "An  open  promise  in  writing  by  one  person  to  pay  another 
person  therein  named  or  to  his  order,  or  to  bearer,  a  specified  sum  of 
money,  absolutely  and  at  all  events,"  1  Daniel  36. 

Parsons.  -  "In  its  simplest  form,  a  written  promise.  A  negotiable  note 
is  always  a  promise  to  pay  money,"  1  Parsons  14. 

Story. — "A  written  engagement  by  one  person  to  pay  another  person 
therein  named  absolutely  and  unconditionally  a  certain  sum  of  money  at  a 
time  specified  therein,"  Story  on  Prom.  Notes  $  1. 

Chalmers. — "An  unconditioned  written  promise  to  pay  absolutely  and 
at  all  events  a  sum  certain  in  money  either  to  the  bearer  or  to  a  person 
therein  designated,  or  his  order,"  Benj.  Chalm.  Dig.,  Art.  271. 

Bouvier— "A  written  promise  to  pay  a  certain  sum  of  money  at  a  future 
time  unconditionally,"  Law  Diet. 

See,  too,  Hall  v.  Farmer,  5  Denio  485;  Walters  v.  Short,  10  111.  252. 

California  Civil  Code. — "An  instrument  negotiable  in  form  whereby  the 
signer  promises  to  pay  a  specified  sum  of  money,"  Sec.  3244. 

English  Bills  of  Exchange  Act,  1882.^-" An  unconditional  promise  in 
writing  made  by  one  person  to  another  signed  by  the  maker,  engaging  to 
pay,  on  demand  or  at  a  fixed  or  determinable  future  time  a  sum  certain  in 
money,  to,  or  to  the  order  of,  a  specified  person  or  to  bearer,"  Sec.  83. 

1  Promissory  notes— Form. 
$500.  Jersey  City,  May  1st,  1884. 

Thirty  days  after  date  I  promise  to  pay  to  John  Jones,  or  order,  five  hundred  dol- 
lars at  the  First  National  Bank  in  Jersey  Citv,  value  received. 

HENRY  GEORGE. 

$300.  Jersey  City,  May  1st,  1884. 

On  demand  we  promise  to  pay  to  the  order  of  John  Jones  three  hundred  dollars, 
value  received. 

Payable  at  No.  1  Broadway,  New  York.  GEORGE  &  CO. 

$300.  Jersey  City,  May  1st,  1884. 

Three  months  after  date  we  promise  to  pay  to  the  bearer  three  hundred  dollars, 
value  received. 

Payable  at  the  First  National  Bank  in  Jersey  Citv.  GEORGE  &  CO. 


8  GENERAL    PRINCIPLES    AND    DEFINITIONS. 

§  8.  Checks. — A  check  is  a  bill  of  exchange  drawn  on  a 
banker  payable  on  demand.1  It  presupposes  funds  of  the 
drawer  in  the  hands  of  the  bank  or  banker  drawn  upon.  In 
fact,  however,  the  want  of  such  deposit  goes  to  the  value 
rather  than  to  the  character  of  the  instrument.  The  form 
of  a  check  is  that  of  an  inland  bill  of  exchange  which  desig- 
nates neither  time  or  place  of  payment  and  makes  no  refer- 

1  Check  defined. 

Byles. — "III  legal  effect  an  inland  bill  drawn  on  a  banker  payable  to 
bearer  (or  order)  on  demand,"  Byles  13. 

Ohitty. — "A  written  order  or  request  addressed  to  persons  carrying  on 
the  business  of  bankers  and  drawn  on  them  by  a  party  having  money  in 
their  hands,  requesting  them  to  pay  on  presentment  to  a  person  therein 
named,  or  to  bearer,  a  named  sum  of  money,"  Chitty  578. 

Daniel. — "A  draft  or  order  upon  a  bank  or  banking  house  purporting  to 
be  drawn  upon  a  deposit  of  funds  for  the  payment,  at  all  events,  of  a  cer- 
tain sum  of  money,  to  a  certain  person  therein  named;  or  to  him  or  his 
order,  or  to  bearer,  and  payable  instantly  on  demand,"  2  Daniel  583. 

Edwards. — "In  substance  a  bill  payable  on  demand,"  1  Edwards,  $  19. 

Parsons. — "A  brief  draft  or  order  on  a  bank  or  banking  house  directing 
it  to  pay  a  certain  sum  of  money,"  2  Parsons  57. 

Story. — "A  written  order  or  request  addressed  to  a  bank  or  to  persons 
carrying  on  the  business  of  bankers  by  a  party  having  money  in  their  hands, 
requesting  them  to  pay,  on  presentment,  to  another  person,  or  to  him  or 
bearer,  or  to  him  or  order,  a  certain  sum  of  money  specified  in  the  instru- 
ment," Story  on  Prom.  Notes,  §  487. 

Chalmers. — "A  bill  drawn  by  a  customer  on  his  banker  payable  on  de- 
mand," Benj.  Chalm.  Dig.,  Art.  254. 

Cowen,  J.,  in  Harker  v.  Anderson,  21  Wend.  372,  "a  bill  payable  on  de- 
mand." 

Shaw,  C.  J.,  in  Bullard  v.  Randall,  1  Gray  605,  "an  order  to  pay  the  holder 
a  sum  of  money  at  the  bank  on  presentment  of  the  check  and  demand  of 
the  money." 

Kent,  C.  J.,  in  People  v.  Howell,  4  Johns.  296,  "falls  within  the  descrip- 
tion of  an  order  for  the  payment  of  money."  So,  Spofford,  J.,  in  State  v. 
Crawford,  13  La.  An.  300. 

Eastman,  J  ,  in  Barnet  v.  Smith,  30  N.  H.  256,  "substantially  the  same  as 
an  inland  bill."     So,  Kent,  J.,  in  Cruger  v.  Armstrong,  3  Johns.  Cas.  5. 

Drake,  J.,  in  State  v.  Rickey,  4  Halst.  312,  "a  request  to  pay  money  to 
the  drawer  or  his  order,  as  a  right  if  he  have  funds,  but  in  some  measure  a 
matter  of  favor  if  he  have  not.  If  there  be  funds  belonging  to  the  drawer 
it  is  a  demand  of  them ;  if  not,  it  is  a  request  of  credit  to  that  amount." 

Burkill. — "A  written  order  or  request  addressed  to  a  bank  or  to  persons 
carrying  on  the  business  of  bankers  by  a  party  having  money  in  their  hands, 
requesting  them  to  pay  on  presentment  to  a  person  named  therein,  or  to 
him  or  bearer,  or  order,  a  named  sum  of  money,"  Law  Diet.  So,  Campbell, 
J.,  in  Bowen  v.  Newell,  5  Sandf.  326,  and  Bouvier,  Law  Diet,  in  loco. 

California  Civil  Code. — "A  bill  of  exchange  drawn  upon  a  bank  or 
banker,  or  a  person  described  as  such  upon  the  face  thereof,  and  payable 
on  demand  without  interest,"  Sec.  3254. 

English  Bills  of  Exchange  Act,  1882,  Sec.  73,  as  in  text. 


LETTERS    OF   CREDIT.  9 

ence  to  consideration  or  account  to  be  charged.1  It  is  not 
usual  to  present  checks  for  acceptance,  but  a  check  may  be 
presented  to  the  bank  for  its  certification.  Checks  are 
usually  certified  by  the  cashier  or  paying  teller  of  the  bank 
by  writing  or  stamping  the  word  "certified"  or  "good"  on 
the  face  of  the  check  with  the  signature  of  the  certifying 
officer.  This  certification  is  equivalent  to  the  acceptance 
of  a  bill. 

§  9.  Bank  Notes. — A  bank  note  or  bank  bill  (as  it  is  some- 
times called)  is  the  promissory  note  of  a  bank  or  banker 
payable  to  bearer  on  demand.2  It  is  intended  to  circulate  as 
money  and  is  generally  treated  as  money.  In  many  respects, 
as  between  holder  and  maker,  it  is  governed  by  the  rules 
controlling  other  similar  notes.  But  the  right  to  issue  such 
notes,  being  virtually  the  power  to  create  paper  money,  is  in 
most  countries  restricted  by  statute. 

§  10.  Letters  of  Credit. — A  letter  of  credit  is  a  request 
from  one  person  to  another  to  make  advances  to  a  third  per- 

•Porm  of  Check. 
No.  100.  Jersey  City,  Sept.  1st,  1884. 

Second  National  Bank. 

Pav  to  the  order  of  Henry  James  five  hundred  dollars. 
$500.00.  BROWN  &  CO. 

2  Bank  notes  or  bank  bills  defined. 

Byles. — "A  promissory  note  made  by  a  banker  payable  to  bearer  on 
demand  and  intended  to  circulate  as  money,"  Byles  on  Bills  9. 

Daniel. — "The  notes  of  incorporated  banks  designed  to  circulate  like 
money  and  payable  to  bearer  on  demand,"  2  Daniel  676. 

Edwards. — "A  species  of  promissory  note  drawn  payable  to  bearer  on 
demand  and  for  many  purposes  considered  and  treated  as  cash,"  1  Edwards, 
§20. 

Parsons. — "The  promissory  note  of  a  bank  payable  on  demand  to  bearer 
and  therefore  negotiable  by  delivery,"  2  Parsons  88. 

Savage,  C.  J.,  in  Haxton  v.  Bishop,  3  Wend.  21,  "bank  notes  are  promis- 
sory notes  " 

Butterfield,  J.,  in  Townsend  v.  People,  4  111.  326,  "a  written  promise 
on  the  part  of  the  bank  to  pay  to  the  bearer  a  certain  sum  of  money  on 
demand." 

And  as  to  the  identity  of  bank  notes  and  bank  bills,  see  Low  v.  People, 
2  Parker  Cr.  37 ;  State  v.  Wilkins,  17  Vt.  151 ;  State  v.  Hays,  21  Ind.  176. 

They  are  not  securities  for  debt  but  to  all  intents  and  purposes  money, 
Wright  v.  Reed,  3  T.  R.  554  ;  Miller  v.  Race,  1  Burr.  452  ;  United  States  Bank 
v.  Bank  of  Georgia,  HI  Wheat.  333;  Southcot  v.  Watson,  3  Atk.  226.  But 
not  so  provincial  notes,  Ellenborough,  C.  J.,  in  Pickard  v.  Bank,  13  East  20. 


10  GENERAL    PRINCIPLES    AND    DEFINITIONS 

son  on  the  credit  of  the  one  who  gives  the  letter.1  It  gener- 
ally provides  for  payments  to  the  payee  in  such  installments 
as  he  may  desire  within  a  designated  period  of  time  and 
aggregate  limit  of  amount,  to  be  evidenced  by  the  payee's 
drafts  for  such  sums  on  the  original  drawer  of  the  letter  of 
credit  in  favor  of  the  original  drawee  or  of  the  person 
making  the  payment.  It  is  general,  if  addressed  to  no  per- 
son in  particular,  and  special  if  addressed  to  special  persons. 
In  effect,  it  is  an  agreement  to  accept  and  promise  to  pay 
such  drafts  or  generally  to  repay  the  jmyinents  made  on  the 
letter.  In  form,  it  is  ordinarily  drawn  for  the  benefit  of  a 
particular  person  and  is  not  negotiable. 

§  11.  Certificates  of  Deposit — Due  Bills. — A  certificate  of 
deposit  is  a  receipt  for  money  deposited,  with  a  promise  to 
hold  it  or  pay  it  as  may  be  agreed  between  the  parties.  It 
may  or  it  may  not  be  negotiable.  When  negotiable,  it  has 
in  general  the  effect,  if  not  the  form,  of  a  promissory  note. 

A  due  bill  is  an  acknowledgment  of  indebtedness  with  no 
express  promise  of  payment.  It  is  made  a  negotiable  instru- 
ment in  some  States  by  statute. 

§  12.  Corporation  Bonds — Coupons. — A  corporation  bond 
is  an  obligation  to  pay  money  given  under  its  corporate  seal. 
It  is  often  made  negotiable  in  form  by  drawing  it  payable 
"to  the  bearer"  or  to  "the  order  of  A.  B."  Such  instru- 
ments are  held  to  be  "negotiable"  so  far  as  regards  their 

i  Letter  of  credit  defined. 

Story. — "An  open  letter  of  request  whereby  any  person  (usually  a  mer- 
chant or  banker)  requests  some  other  person  or  persons  to  advance  moneys- 
or  give  credit  to  a  third  person  named  therein  for  a  certain  amount  and 
promises  that  he  will  repay  the  same  to  the  person  advancing  the  same  or 
accept  bills  of  exchange  drawn  on  himself  for  the  like  amount,"  Story  on 
Bills  §  459. 

Daniel. — "A  letter  of  request  whereby  one  person  requests  another  per- 
son to  advance  money  and  give  credit  to  a  third  person  and  promises  that 
he  will  repay  or  guaranty  the  same  to  the  person  making  the  advancement 
or  accept  bills  of  exchange  drawn  upon  hiniselt  for  the  like  amount,"  2 
Daniel  800. 

Rapalje  and  Lawrence. — "An  authority  by  one  person,  A.,  to  another, 
B.,  to  draw  checks  or  bills  of  exchange  witn  or  without  a  limit  as  to  amount 
upon  him,  with  an  undertaking  by  A.  to  honor  the  drafts  on  presentation," 
Law  Diet,  in  loco.  See,  too,  Comstock,  J.,  in  Mechanics'  Bank  v.  N.  Y.  & 
N.  H.  R.  R.,4Duer480;  3  N.  Y.  599;  and  Bronion,  J.,  in  Bin.khead  v.  Brown, 
5  Hill  <;:;4 


TRANSFER.  11 

capacity  for  transfer  by  delivery  or  indorsement  and  clear 
of  defenses.  They  are  not,  however,  within  the  ordinary 
rules  of  commercial  paper  as  to  grace,  protest  and  notice  of 
dishonor.  Nor  do  they  ordinarily  fall  within  the  statutes 
providing  for  special  actions  on  bills  or  notes. 

The  interest  on  such  bonds  is  generally  secured  by  a 
coupon.  These  are  small  notes  or  due  bills  for  the  install- 
ments of  interest  as  they  mature,  printed  or  written  on  the 
same  paper  as  the  bond,  but  capable  of  being  severed  from 
it  and  transferred  without  it.  They  are  transferable  by 
indorsement  or  delivery  and  have  some  of  the  incidents  of  a 
negotiable  promissory  note. 

§  13.  Transfer — Indorsement. — Commercial  paper  is  trans- 
ferred by  delivery,  if  payable  to  bearer — by  indorsement  if 
payable  to  the  order  of  the  payee.  An  indorsement  is  a 
transfer  of  the  instrument  written  on  the  paper  or  (for  want 
of  room)  on  an  attached  piece  of  paper  called  an  allonge.1 
It  is  generally  and  properly  written  on  the  back  of  the  in- 
strument, as  its  name  implies,  but  may  be  written  elsewhere. 

It  is  either  in  blank  or  in  full.  General  or  blank  indorse- 
ments are  made  by  the  holder's  signature  written  across  the 
back  of  the  instrument  and  making  it  in  effect  payable  gen- 
erally, i.  e.  to  the  bearer.  A  full  or  special  indorsement  is 
an  order  by  the  holder  written  across  the  back  of  the  paper 
directing  its  payment  to  the  order  of  another  person,  e.  g. 
"pay  to  the  order  of  A.  B.,  Brown  &  Co." 

1  Indorsement  denned. 

Chalmers. — "A  writing  on  a  bill  signed  by  the  holder  ordering  the  amount 
to  be  paid  to  a  person  therein  designated  or  to  his  order  or  to  bearer,"  Benj. 
Chalm.  Dig.,  Art.  111. 

Parsons. — "  Its  exact  and  legal  as  well  as  commercial  sense  is  the  transfer 
of  a  negotiable  note  or  bill  by  the  indorsement  of  some  person  who  has  a 
right  to  indorse,"  2  Parsons  1. 

Daniel. — "In  its  literal  sense,  writing  one's  name  on  the  back  *  *  * 
in  its  technical  sense,  writing  one's  name  thereon  with  intent  to  incur  the 
liability  of  a  party  who  warrants  payment  of  the  instrument  provided  it  is 
duly  presented  to  the  principal  at  maturity,  not  paid  by  him,  and  such  fact 
is  duly  notified  to  indorser,"  1  Daniel  592.*  As  to  the  meaning  of  the  word 
and  the  place  for  indorsement,  see  also,  2  Bishop  Crim.  L.  §  570a;  Clark  v. 
Sigourney,  17  Conn.  511;  Hartwell  v.  Hemmenwav,  7  Pick.  117;  Common- 
wealth v.  Buttrick,  100  Mass.  12;  Commonwealth  v.  Spilman, ,124  lb.  327; 
Higgin8  v.  Bullock,  66  111.  37;  Rapalje  &  Lawrence  Law  Diet,  in  loco 


12  GENERAL    PRINCIPLES    AXD    DEFINITIONS. 

An  indorsement  may  also  be  conditional,  directing  pay- 
ment on  the  happening  of  a  certain  event;  absolute,  obliging 
the  indorser  to  pay  without  regard  to  presentment  or  protest, 
e.  g.  "protest  waived;"  qualified  as  to  the  indorser's  obliga- 
tion, e.  g.  "without  recourse;"  or  restrictive  as  to  the  in- 
dorsee's use,  e.  g.  "pay  to  A.  B.  for  the  use  of  C.  D."  The 
effect  of  an  indorsement  is  not  merely  to  transfer  the  instru- 
ment and  the  power  to  sue  on  it.  It  also  contains  by  impli- 
cation of  law  an  undertaking  to  pay  the  instrument  on  due 
notice  of  dishonor,  together  with  certain  warranties  as  to 
title,  genuineness  and  validity  of  the  paper  as  well  as 
capacity  and  solvency  of  the  parties.1 

§  14.  Holder — "Bona  Fide  Holder  for  Value." — One  who 
rightfully  receives  a  bill  or  note  either  by  original  delivery 
or  subsequent  transfer  is  termed  the  holder.'1  If  the  transfer 
is  made  before  the  maturity  of  the  paper  for  valuable  con- 
sideration to  a  purchaser  having  no  notice  of  defenses  that 
existed  between  the  original  parties  or  have  subsequently 

1 "  Negotiation  means  the  transfer  of  a  bill  in  the  form  and  manner  pre- 
scribed by  the  law  merchant  with  the  incidents  and  privileges  annexed 
thereto,  %.  e., 

"1.  The  transferee  can  sue  all  the  parties  to  the  instrument  in  his  own 
name. 

"2.  The  consideration  for  the  transfer  is  prima  facie  presumed. 

"3.  The  transferrer  can  under  certain  conditions  give  a  good  title  although 
he  has  none  himself. 

"4.  The  transferee  can  negotiate  the  bill  with  the  like  privileges  and 
incidents,"  Benj.  Chalm.  Dig.,  Art.  106. 

"To  negotiate  a  V* i  1 1  of  exchange,  promissory  note,  check,  or  other  nego- 
tiable instrument  for  the  payment  of  money,  is  to  transfer  it  for  value  by 
delivery  or  indorsement,"  Rapalje  &  L.  Law  Diet. 

"The  term  negotiate  in  its  enlarged  signification  applies  to  any  written 
security  which  may  be  transferred  by  indorsement  or  delivery  so  as  to  vest 
in  the  indorsee  the  legal  title  so  as  to  enable  him  to  maintain  a  suit  thereon 
iu  his  own  name,"  Scott,  J.,  in  Odell  v.  Gray,  15  Mo.  342. 

2  Byles. — "Holder  is  a  general  word  applied  to  any  one  in  actual  or  con- 
structive possession  of  the  bill  and  entitled  at  law  to  recover  or  receive  its 
contents  from  the  parties  to  it,"  Byles  2. 

Parsons. — "By  the  holder  of  negotiable  paper  is  meant  in  law  the  owner 
of  it,  for  if  it  be  in  his  possession  without  title  or  interest  he  is  in  general 
considered  only  as  the  agent  of  the  owner,"  1  Parsons  253. 

Daniel. — "Any  one  who  has  acquired  it  in  good  faith  for  a  valuable  con- 
sideration from  one  capable  of  transferring  it,"  1  Daniel  716. 

Chalmers, — "The  person  in  possession  of  a  bill  who  by  the  law  merchant 
is  entitled  to  enforce  the  payment  thereof,  it  includes  equally  payee,  in- 
doisee  or  bearer,"  Benj.  Chalm.  Dig.,  Art.  3. 


MATURITY.  13 

arisen,  such  holder  is  called  a  "bona  fide  holder  for  value."1 
As  such  he  takes  the  instrument  free  from  defenses  which 
were  available  against  his  immediate  indorser  or  prior  parties. 

The  holder  is  generally  designated  in  a  bill  or  note  by  the 
word  "bearer"  or  "order,"  any  rightful  holder  by  delivery 
being  intended  by  the  former  term,  and  any  rightful  holder 
by  indorsement  being  intended  by  the  latter. 

§  15.  Consideration — Accommodation. — Commercial  paper 
requires,  in  general,  such  consideration  as  other  contracts. 
This  consideration  is  usually  expressed  in  the  body  of  the 
instrument  by  the  words  "value  received."  The  law  mer- 
chant raises  a  presumption  of  consideration  in  favor  of  bills, 
notes,  checks,  acceptances  and  indorsements.  The  considera- 
tion may  be,  and  often  is,  the  accommodation  or  procurement 
of  credit  for  another  party  to  the  paper.2  This  is  a  valid 
consideration  applicable  alike  to  all  parties  and  binding  upon 
the  accommodation  maker,  drawer,  acceptor  or  indorser  even 
in  favor  of  a  holder  who  took  the  paper  with  full  knowledge 
of  its  accommodation  character.  Such  knowledge  does  not 
affect  his  character  as  a  "bona  fide  holder." 

§  16.  Maturity — Grace. — The  maturity  of  a  bill  or  note 
is  indicated  in  the  instrument  itself  either  by  making 
it    payable    a    certain    number    of    days    or    months    or 

Chalmers. — "A  holder  for  value  who  at  the  time  he  becomes  the  holder 
and  gives  value  is  really  and  truly  without  notice  of  any  facts  which  if 
known  would  defeat  his  title  to  the  bill,"  Benj.  Chalm.  Dig.,  Art.  85. 

Parsons. — "He  who  acquires  the  paper  in  good  faith,  without  notice  or 
knowledge  of  defenses  or  circumstances  which  should  put  him  on  inquiry, 
for  valuable  consideration  from  one  capable  of  transferring  the  paper,"  1 
Parsons  254. 

J Parsons. — "Accommodation  paper  is  the  loan  of  credit  for  the  benefit 
of  the  borrower  without  restriction  as  to  the  use,"  2  Parsons  27.  So,  Dunn 
v.  Weston,  71  Me.  270;  Lord  v.  Ocean  Bank,  20  Penna.  St.  3S4. 

Daniel. — "An  accommodation  bill  or  note  is  one  to  which  the  accommo- 
dating party  has  put  his  name  without  consideration  for  the  purpose  of 
accommodating  some  other  party  who  is  to  use  it  and  is  expected  to  pay  it," 
1  Daniel  191. 

Chalmers. — '"Accommodation  bill'  means  a  bill  whereof  the  acceptor 
(i.  e.,  the  principal  debtor  on  the  instrument)  is  substantially  a  mere  surety 
for  some  other  person  who  may  or  may  not  be  a  party  thereto.  'Accom- 
modation party  means  a  person  who  has  signed  a  hill  as  drawer,  indorser 
or  acceptor  without  receiving  value  and  for  the  purpose  of  lending  his  name 
to  some  other  person  as  a  means  of  credit,"  Benj.  Chalm.  Dig.,  Art.  90. 


14  GENERAL    PRINCIPLES    AND    DEFINITIONS. 

"usances"  "after  date"  or  "after  sight,"  or  "on  demand," 
or  "at  sight." 

Where  the  bill  runs  a  certain  time  "after  sight"  it  must 
be  presented  for  acceptance,  and  whether  accepted  or  dis- 
honored, the  time  will  run  from  such  presentment.  If  pay- 
able "on  demand"  or  "at  sight"  it  matures  when  presented, 
unless  days  of  grace  are  allowed.  Some  States  have  deter- 
mined by  statute  the  maturity  of  bills  and  notes  payable  "on 
demand,"  fixing  it  at  four  or  six  months.  If  no  time  of 
payment  is  expressed  the  paper  is  payable  on  demand.  A 
usance  is  a  customary  period  for  payment  fixed  by  custom 
of  the  place  of  drawing  and  of  payment.  The  term  is  not 
used  in  English  or  American  bills. 

Days  of  grace,  generally  three  in  number,  are  allowed  in 
many  countries  after  the  expiration  of  the  time  limited  for 
payment  in  the  instrument.1  In  such  case  the  bill  or  note 
falls  due,  and  should  be  presented  for  payment,  on  the  last 
day  of  grace.  The  allowance  of  grace  is  not  made  on  checks 
or  bank  bills. 

§  17.  Presentment  for  Payment — Payment. — A  bill  or  note 
must  be  presented  for  payment  promptly  at  its  maturity  and 
a  failure  to  make  such  presentment  will  discharge  parties 
secondarily  liable,  e.  g.  the  drawer  and  indorsers,  but  will 
not  affect  those  liable  in  the  first  instance,  i.  e.  the  acceptor 
of  a  bill  or  maker  of  a  note.  If  the  paper  is  taken  up  and 
paid  by  a  party  not  himself  ultimately  liable,  the  payment 
will  not  extinguish  the  instrument,  but  it  will  be  kept  alive 
as  against  prior  parties. 

§  18.  Dishonor — Protest  and  Notice. — When  payment  of  a 
bill,  note  or  check  is  refused  on  due  presentment  at  maturity, 
the  paper  is  said  to  be  dishonored.     If  it  is  a  foreign  bill  of 

x"In  the  law  of  bills  days  of  grace  are  a  period  allowed  in  many  countries 
to  the  drawer  or  acceptor  of  a  bill  to  pay  after  the  due  date,  originally  as  a 
favor  but  now  as  a  matter  of  right,"  Rapalje  &  L.  Law  Diet.  So,  Ferris  v. 
Saxfcon,  1  South.  17 ;  1  Daniel  550. 

Bouvier. — "  Certain  days  allowed  to  the  acceptor  of  a  bill  or  the  maker 
of  a  note  in  which  to  make  payment,  in  addition  to  the  time  contracted  for 
by  the  bill  or  note  itself,"  Law  Diet. 


ACTION.  15 

exchange,  it  must  then  be  protested.  And  in  every  case 
notice  of  the  non-payment  of  the  instrument  must  be  given 
immediately  as  in  the  case  of  protest  and  notice  for  non- 
acceptance.1 

§  19.  Action — Procedure — Damages. — In  many  countries 
an  action  of  summary  character  is  given  by  statute  to  the 
holder  of  a  bill  of  exchange.  In  many  of  the  United  States 
actions  on  bills  and  notes  have  been  simplified  by  statutes 
enabling  the  holder  to  prosecute  all  prior  parties  in  one 
action  and  giving  the  benefit  of  the  judgment  rendered  in 
such  action  to  a  defeudant  who  pays  it  off  and  is  entitled  to 
recover  against  other  and  prior  parties. 

Special  damages  are  also  sometimes  allowed,  including 
re-exchange."1  And  in  many  States  the  rate  of  damages  to  be 
allowed  over  and  above  interest  is  fixed  by  statute. 

'For  forms  of  protest  and  notice  for  nonpayment  see  $  6,  substituting 
payment  for  acceptance  wherever  it  occurs. 

'Re-exchange  denned. 

Kent. — "The  purchase  of  a  new  bill  on  the  cuuntry  where  the  drawer 
of  the  protested  bill  lives,"  3  Kent  Com.  116. 

Story. — (In  the  commercial  sense)  "the  amount  for  which  a  bill  of  ex- 
change can  be  purchased  in  the  country  where  the  acceptance  is  made, 
drawn  upon  the  drawer  or  indorser  in  the  country  where  he  resides,  which 
will  give  the  holder  of  the  original  bill  a  sum  exactly  equal  to  the  amount 
of  the  bill  at  the  time  when  it  ought  to  be  paid  or  when  he  is  able  to  draw 
the  re-exchange  bill  together  with  his  necessary  expenses  and  interest," 
Story  on  Bills  \  400. 

Byles. — "The  difference  in  the  value  of  a  bill  occasioned  by  its  being 
dishonored  in  a  foreign  country  in  which  it  was  payable.  The  existence 
and  amount  of  it  depend  on  the  rate  of  exchange  between  the  two  coun- 
tries," Byles  418. 

Daniel.— "The  amount  for  which  a  bill  of  exchange  may  be  purchased 
in  the  country  where  the  original  bill  is  payable,  drawn  upon  the  drawer  in 
the  country  where  he  resides,  which  will  give  the  holder  a  sum  exactly 
equal  to  the  amount  of  the  original  bill  at  the  time  it  ought  to  be  paid,  or 
when  he  is  able  to  draw  the  re-exchange  bill,  together  with  expenses  and 
interest,  for  that  is  precisely  the  sum  which  the  holder  is  entitled  to  receive 
and  which  will  indemnify  him  for  its  non-payment,"  2  Daniel  452. 

Rapalje  and  L.  Law  Dict. — "The  damages  which  the  holder  of  a  bill  of 
exchange  sustains  by  its  being  dishonored  in  a  foreign  country  where  it  was 
made  payable  " 

Chalmers. — "The  loss  resulting  from  the  dishonor  of  a  bill  of  exchange 
in  a  country  different  from  that  in  which  it  was  drawn  or  indorsed,"  Benj. 
Chalm.  Dig.,  Art.  221. 


lfi  WHAT    LAW    GOVERNS. 

4 

CHAPTER  II. 

WHAT  LAW  GOVERNS. 


I.    GENERAL    PRINCIPLES. 

20.  Law  of  place  in  general— Foreign  hills. 

21.  Lex  loci  contractus  governs— Liability — Form. 

22.  Validity— Effect. 

23.  Presumption  as  to  intent  of  parties. 
124.   Delivery  determines  place  of  contract. 

26.  determined  by  Date. 

27.  by  Situation  of  Real  Estate  Security — Domicil. 

28.  Lex  loci  solutionis  governs  Validity,  Obligation  and  Construction. 

29.  Indorsement. 

30.  Interest — Usury. 

31.  Grace — Currency — Alteration — Protest. 

32.  Liability  of  drawer — What  law  governs. 

33.  Lex  loci  solutionis — What  place. 

34.  Presumptions  as  to  foreign  law. 

§  20.  Law  of  Place — In  General — Foreign  Bills. — As  bills 
of  exchange,  and,  to  some  extent  drafts  and  notes,  are  in- 
tended for  circulation  from  place  to  place  and  are  frequently 
drawn  in  one  place,  accepted  in  another,  and  indorsed  and 
finally  paid  in  still  other  and  different  places,  it  is  natural 
that  the  law  of  place  should  be  of  especial  importance  in 
these  contracts.  And  in  the  United  States,  where  the  com- 
mercial relatious  are  very  close  and  the  State  laws  often 
widely  different,  questions  frequently  arise  as  to  what  law 
governs  the  instrument  in  dispute. 

A  bill  of  exchange  drawn  in  one  of  the  United  States 
upon  another  is,  in  general,  treated  as  a  foreign  bill.1  So,  a 
bill  drawn  in  England  and  payable  there,  if  drawn  on  a  Bos- 
ton firm,  is  a  foreign  bill,  although  accepted  in  England  by 
a  member  of  the  Boston  house  who  was  then  in  England.2 

Bernard  v.  Barry,  1  Gr.  388  (Iowa,  1848) ;  Mason  v.  Dousay,  35  111.  424 
(18(54) ;  Donegan  v.  Wood,  49  Ala.  242  (1873) ;  Joseph  v.  Salomon,  1<)  Fla. 
623  (1883);  Townsley  v.  Sumrall.  2  Pet,  170  (1829)  ;  Buckner  v.  Finlev,  lb. 
586  (1829)  ;  Dickins  v.  Beal,  10  lb.  572  (1836).     And  see  Chap.  VII.,  infra. 

2Grimshaw  v.  Bender,  6  Mass.  157  (1809)  ;  but  see  Scudder  v.  Union  Nat. 
Bank,  1  Otto  406  (1S75). 


LEX    LOCI    CONTRACTUS    GOVERNS    LIABILITY.  17 

But  a  bill  drawn  in  South  Carolina  on  a  citizen  of  Pennsyl- 
vania  is  a  South  Carolina  contract,  although  it  may  be  a  for- 
eign bill.1  And  it  is  to  be  remembered  that  the  drawing, 
accepting  and  indorsing  of  bills  and  notes  are  all  distinct 
contracts  and  may  have  separate  localities  and  be  governed 
by  various  laws.2 

§  21.  Lex  Loci  Contractus  Governs  Liability — Form. — In 
general,  the  rule  of  other  contracts  applies  to  commercial 
paper.  The  law  of  the  place  where  the  contract  is  made 
governs  the  contract,  unless  such  law  is  against  the  public 
morals  or  policy  of  the  State  where  it  is  to  be  enforced.3  It 
controls  the  liability  of  the  maker  of  a  promissory  note,4 
although  the  note  may  afterward  be  transferred  in  another 
State.5  The  rights  and  the  liability  of  the  drawer  of  a  bill 
of  exchange  are  governed  by  it.6  The  liability  of  one  who 
accepts,  or  agrees  to  accept,  a  bill  is  governed  by  the  law  of 
the  place  of  acceptance.7  So,  the  liability  of  a  surety  de- 
pends on  the  place  of  his  contract.8 

The  law  of  the  place  of  contract  regulates  the  formalities 

'Hazelhurst  v.  Kean,  4  Yeates  19  (1803).  But  a  note  made  in  Tennessee 
by  a  citizen  of  that  State  to  a  citizen  of  Alabama  at  a  rate  of  interest  law- 
ful in  Alabama  and  not  in  Tennessee,  has  been  sustained  as  an  Alabama 
contract,  Brown  v.  Gardner,  4  Lea  145  (1879). 

2Byles  406;  Gibbs  v.  Fremont,  9  Exch.  31;  Greathead  v.  Walton,  40  Conn. 
226  (1873). 

3Byles  402;  2  Parsons  320;  Story  on  Prom.  Notes  \  155;  Story  on  Confl. 
Laws  |  242 ;  1  Daniel  S28.  That  a  married  woman  may  become  surety  on 
a  note  in  Illinois,  although  differing  from,  is  not  against  the  public  policy 
of  New  Jersey,  Wright  v.  Remington,  12  Vr.  48,  affirmed  14  76.  451  (1879). 
On  the  other  hand,  a  New  Jersey  court  will  not  enforce  a  New  York  con- 
tract secured  by  a  New  Jersey  mortgage  against  the  policy  of  the  New  Jer- 
sey statutes  prohibiting  stock  gambling,  Fla^g  v.  Baldwin,  11  Stew.  219 
(1884). 

'Davis  v.  Clemgon-,  6  McLean  622  (1855),  unless  payable  elsewhere. 

5Ory  v.  Winter,  4  Mart.  (x.  s.)  277  (1826). 

6Thorp  v.  Craig,  10  Iowa  461  (1860).  But  it  has  been  held  that  the  dam- 
ages for  which  the  drawer  of  a  bill  of  exchange  is  liable  must  be  determined 
by  the  place  where  the  bill  was  drawn,  that  being  presumably  the  intended 
place  of  payment  of  a  bill  drawn  to  his  own  order  in  Boston  on  London  and 
negotiated  by  him  in  New  York,  Ex  parte  Heidelback,  2  Lowell  526  (1876).   . 

7Boyce  v.  Edwards,  4  Pet.  Ill  (1830).  So,  too,  Scudder  v.  Union  Nat. 
Bank,  1  Otto  406  (1875).  But  see  Lonsdale  v.  Lafayette  Bank,  18  Ohio  126 
(1849). 

"Long  v.  Templeman,  24  La,  An.  561  (1872).  And  this  rule  is  not  affected 
by  a  subsequent  change  of  domicil  on  the  part  of  the  principal,  lb. 

B 


18  WHAT    LAW    GOVERNS. 

of  its  execution.1  Thus,  the  sufficiency  of  a  parol  acceptance 
is  governed  by  the  law  of  the  place  of  acceptance.2  In  like 
manner,  where  a  person  in  New  York  writes  to  another  in 
Michigan,  authorizing  the  latter  to  draw  on  him  bills  payable 
in  New  York,  this  authority  is  governed  by  New  York  law 
and  amounts  to  an  acceptance  there.5  So,  an  indorsement  in 
blank,  made  in  France  and  invalid  there,  is  of  no  force  any- 
where.4 

§  22.  Lex  Loci  Contractus  Governs  Validity — Effect. — The 
validity  of  a  contract  is  determined  by  the  law  where  it  is 
made,5  unless  the  provisions  of  the  foreign  law  are  repugnant 
to  those  of  the  forum,  in  which  case  they  will  not  be  enforced 
there.6  But  an  I.  O.  U.,  given  for  a  gaming  consideration 
and  valid  where  made,  has  been  enforced  as  valid  in  Eng- 
land.7 A  contract  in  Massachusetts  for  the  sale  of  liquor  in 
New  Hampshire  and  its  delivery  there  has  been  held  to  be 
a  New  Hampshire  contract  and  illegal  and  void  by  the  laws 
of  that  State.8  But  a  contract  in  New  Jersey  for  the  sale 
of  personal  property  then  situate  in  Pennsylvania  is  a  New 
Jersey  contract  and  must  comply  with  the  New  Jersey  stat- 
ute of  frauds.9 

*1  Daniel  830;  Story  on  Bills  \  131;  Story  on  Prom.  Notes  \  15S;  Hyde 
v.  Goodnow,  3  N.  Y.  266  (1850)  ;  Evans  v.  Anderson,  78  111.  558  (1875) ;  Da- 
costa  v.  Davis,  4  Zab.  319  (1851) ;  Wood  v.  Gibl>s,  35  Miss.  559  (1858). 

"Mason  v.  Dousay,  35  111.  421  (1861).  So,  Bank  of  Rutland  v.  Woodruff, 
34  Vt.  89  (1861),  where  the  drawee  resided  in  a  State  not  recognizing  such 
acceptances,  but  accepted  the  bill  by  his  agent  in  a  State  where  such  accept- 
ance was  valid.  So,  too,  Scudder  v.  Union  Nat.  Bank,  1  Otto  106  (1875), 
where  the  drawee  was  a  Missouri  firm,  but  the  bill  was  accepted  by  a  mem- 
ber of  the  firm  then  in  Illinois. 

3Bissell  v.  Lewis,  4  Mich.  450  (1857). 

4Byles  103;  Trimbey  t>.  Vignier,  1  Bing.  N.  C.  15;  S.  C,  4  M.  &  S.  695;  6 
C.  &  P.  25;  but  see  Wynne  v.  Jackson,  2  Russ.  51. 

5Story  on  Prom.  Notes  \  155;  Story  on  Bills  \  131;  Byles  403;  Atwater  v. 
Walker,  1  C.  E.  Gr.  42;  S.  C,  2  McCart.  502  (1863)  ;  Armour  v.  McMichaet, 
7  Vr.  92,  94  (1872);  Dolman  v.  Cook,  1  McCart.  56,  62  (1861);  Andrews  v. 
Torrey.  lb.  355,  357  (1862);  Cotheal  v.  Blydenburgh,  1  Halst.  Ch.  17  (1845)  ; 
S.  C,  lb.  631  (1817);  Woodruff*.  Hill.  116  Mass.  310  (1874);  Carnegie  v. 
Morrison,  2  Mete.  381,  397  (1841) ;  Bisseii  v.  Lewis,  4  Mich.  450,  459  (1857) ; 
Fitch  (;.  Rentier,  8  Am.  Law  Reg.  654  (1860);  Wood  v.  Gibbs,  35  Miss.  559 
(  L858) ;  McDougald  v.  Rutherford,  30  Ala.  253  (1857). 

6 King  i'.  Servia,  69  N.  Y.  21  ( 1877). 

'Byles  101;  Quarrier  v.  Colston,  12  L.  J.  Ch.  57;  1  Pbill.  117. 

8  Wilson  d.  Stmtton,  17  Me.  120  (I860). 

•Dacosta  v   Davis.  1  Zab.  310  (1.S5I). 


LEX    LOCI    CONTRACTUS    GOVERNS    VALIDITY.  19 

In  like  manner,  the  effect  of  a  contract  is  governed  oj  the 
law  of  the  place  where  it  is  made.1  This  rule  has  been 
applied  to  the  questions  of  what  grace  shall  be  allowed,2  and 
what  interest  paid.3  And  the  fact  that  a  note  made  in  one 
State  is  secured  by  a  mortgage  on  lands  lying  in  another 
State  will  not  change  this  rule.4  The  acceptor  of  a  bill  is 
governed  in  his  turn  as  to  interest  to  be  paid  by  the  law  of 
the  place  of  acceptance.5 

But  the  place  of  a  contract  is  itself  not  always  apparent. 
Thus,  a  bill,  payable  in  Massachusetts  and  accepted  there 
for  the  drawer's  accommodation  and  discounted  in  New 
York  at  a  usurious  rate,  is  really  a  New  York  contract 
and  void  by  New  York  law,  even  though  the  acceptor 
held  collaterals  of  the  drawer  for  his  security.0  But  where 
a  bill  is  drawn  in  one  State  on  a  citizen  of  another  State  and 
by  implication  is  payable  in  the  latter,  if  it  is  valid  in  the 
State  where  it  is  drawn,  it  will  not  be  held  usurious  by  the 
law  of  the  place  of  payment.7  If,  however,  a  New  York 
contract  and  loan,  usurious  there,  is  completed  in  Nebraska 
by  a  note  given  there,  payable  in  New  York,  and  a  mort- 
gage on  lands  in  Nebraska,  the  fact  of  the  delivery  of  the 

'Story  on  Prom.  Notes  \  155;  Story  on  Bills  \  131;  1  Daniel  830:  Hvde 
v.  Goodnow,  3  N.  Y.  266  (1850) ;  Evans  v.  Anderson,  78  111.  558  (1875) ; 
Kanaga  v.  Taylor,  7  Ohio  St.  134,  142  (1857)  ;  Armendiaz  v.  Sana,  40  Tex. 
291  (1874);  Arnold  v.  Potter,  22  Iowa  194  (1867);  Carnegie  v.  Morrison.  2 
Mete.  381,  397  (1841);  Bissell  v.  Lewis,  4  Mich.  450,  459  (1857);  Steele  v. 
Curie,  4  Dana  381  (1836) ;  Stevens  v.  Norris,  30  N.  H.  466,  470  (1855) ;  Wood 
v.  Gibbs,  35  Miss.  559  (1858) ;  McDougald  v.  Rutherford,  3  »  Ala   253  (1857). 

*Burnham  v.  Webster,  19  Me.  232  (1841). 

3Byles  406;  Story  on  Prom.  Notes  \  166;  Hunter  v. Blodgett, 2  Yeates  480 
(1799);  Varick  v.  Crane,  3  Gr.  Ch.  128  (1837);  Jewell  v.  Wright,  30  N.  Y. 
259  (1864);  Merchants'  Bank  v.  Griswold,  72  N.  Y.  472  (1878);  Pugh  v. 
v.  Camera,  11  W.  Va.  523  (1877) ;  Second  National  Bank  v.  Smoot,  2  Mac- 
Arth.  371  (1876).  And  this  has  been  recently  held  to  be  the  rule  in  the 
New  York  Court  of  Appeals,  in  sustaining  a  note  payable  in  another  State 
and  given  in  payment  of  a  loan  made  in  that  State,  Sheldon  v.  Haxtun,  2 
N.  Y.  Cond.  Rep.  203  (1883)  ;  01  N.  Y.  124. 

4DeWolf  v.  Johnson,  10  Wheat.  367  (1825);  Chase  v.  Dow,  47  N.  H.  405 
(1867). 

5Byles406;  Cooper  v.  Earl  Waldegrave,  2  Beav.  282;  Allen  v.  Kenible,  6 
Moo.  P.  C.  314. 

6Akers  v.  Demond,  103  Mass.  318  (1S69). 

'Bank  of  Georgia  v.  Lewin,  45  Barb.  340  (1S65) ;  Balme  v.  Wombough, 
38  Barh.  352  (1862) ;  Chapman  v.  Robertson,  6  Paige  627,  634  (1837)  ;  Pratt 
v.  Adams,  7  lb  615,  632  (1839). 


20  WHAT    LAW    GOVE11NS. 

papers  and  the  situation  of  the  mortgaged  land  in  Nebraska 
will  not  save  the  note  from  being  rendered  void  by  the  laws 
of  New  York.1 

§  23.  Presumption  as  to  Intent  of  Parties. — In  general,  a 
contract  is  presumed  to  have  been  made  with  reference  to 
the  lawrs  of  the  place  where  it  is  made  and  with  knowledge 
of  those  laws.2  And  this  rule  applies  to  contracts  made  in 
another  place  as  well  as  to  those  made  in  the  place  where  the 
action  is  brought.3 

§  24.  Delivery  Fixes  Place  of  Contract. — When  a  contract 
in  writing  is  completed,  the  place  of  its  delivery  is  the  place 
where  it  is  held  to  have  been  made.4  The  delivery  is  the 
completion  of  the  contract.  It  therefore  controls  the  date, 
if  a  different  one  is  expressed,  as  well  as  the  mere  place  of 
drawing  the  instrument5  So,  if  a  note  is  dated  and  signed 
in  blank  in  one  State  and  sent  into  another  State  to  be  filled 
up  and  delivered,  the  law  of  the  latter  State  will  govern  it.6 
So,  if  it  is  dated  and  signed  in  one  State  by  one  of  several 
makers  and  afterward  signed  and  delivered  by  the  others  in 
another  State,  it  is  considered  to  be  a  contract  of  the  latter 
State.7 

1  Sands  v.  Smith,  1  Neb.  108. 

21  Edwards  g  217;  2  Parsons  318. 

'Chapin  v.  Dobson,  78  N.  Y.  74  (1879). 

*1  Daniel  831 ;  2  Parsons  327 ;  Freese  v.  Brownell,  6  Vr.  285  (1871) ;  Camp- 
bell v.  Nichols,  4  Vr.  81  (1868) ;  Jewell  v.  Wright,  30  N.  Y.  259  (1864) ;  Hyde 
v.  Goodnow,  3  N.  Y.  266  (1850) ;  Bell  v.  Packard,  69  Me.  105  (1879) ;  Gay  v. 
Rainey,  89  111.  221  (1878) ;  Gallaudet  v.  Sykes,  1  MacArth.  489  (1874) ;  Chap- 
man v.  Cottrell,  34  L.  J.  Exch.  186  (1865);  Second  National  Bank  v.  Smoot, 
2  MacArth.  371  (1876);  Lawrence  v.  Basset t,  5  Allen  140  (1862);  Evans  v. 
Anderson,  78  111.  558  (1875).  So,  Matthews,  J.,  in  Whiston  v.  Stodder,  8 
Martin  95  (1820),  the  place  "where  the  final  assent  may  have  been  given." 
But  where  a  loan  is  made  in  one  State  and  the  note  for  it  given  in  another, 
the  former  may  be  the  place  of  contract,  Sands  v.  Smith,  1  Neb.  108. 

&In  re  Conrad,  1  Leg.  Gaz.  Rep.  2S4  (1871) ;  Hyde  v.  Goodnow,  3  N.  Y.  266 
(1850);  Davis  v.  Clemson,  6  McLean  622  (1855) ;  Davis  v.  Coleman,  7  Led. 
424(1847);  Findlav  v.  Hale,  12  Ohio  St.  610(1861);  Second  Nat,  Bank  v. 
Smoot,  2  MacArth.  371  (1876);  Connor  v.  Donnell,  55  Tex.  167  (1881). 
Especially  if  payable  in  the  same  State  where  it  is  delivered,  Cook  v.  Moffat, 
5  How.  295  (1846). 

6Fant  v.  Miller,  17  Gratt.  47  (1866).  The  place  of  making  need  not  appear 
on  the  face  of  the  note,  Evans  v.  Anderson,  78  111  558  (1875). 

THart  v.  Wills,  52  Iowa  56  (1879).  So  as  to  the  statute  requiring  actions 
on  foreign  contracts  to  lie  brought  within  six  months,  Read  v.  Edwards,  2 
New  262  (1866) ;  Aloaldn  v.  Morales,  3  lb.  132  (1867). 


DELIVERY    FIXES    PLACE   OF    CONTRACT.  21 

In  like  manner,  a  note  for  an  insurance  policy,  made  in 
Ohio  and  sent  to  New  York  by  mail  to  take  effect  there  on 
delivery  of  the  policy,  is  a  New  York  note.1  And  a  note 
drawn  in  Massachusetts,  payable  to  a  person  resident  in 
Maine  and  sent  to  him  by  mail,  will  be  binding  by  the  law 
of  Maine  on  a  married  woman  who  signed  it  in  Massachu- 
setts, although  she  would  not  have  been  bound  by  Massa- 
chusetts law.2 

On  the  other  hand,  where  a  note  was  executed  and  delivered 
in  South  Carolina,  and  afterward  signed  by  a  surety  in  North 
Carolina,  no  rate  of  interest  being  expressed,  the  rate  for 
which  the  surety  was  liable  was  held  to  be  that  of  South 
Carolina,  although  higher  than  that  of  his  own  State.3 

§  25.  If  a  surety,  after  indorsing  the  note,  returns  it  to 
the  place  where  it  was  originally  executed  and  dated,  his 
indorsement  will  be  a  contract  of  that  place.4  So,  an  accom- 
modation indorsement  written  in  one  State  and  delivered  in 
another  is  governed  by  the  law  of  the  latter.5  And  an  ac- 
ceptance, given  in  Washington  to  a  bill  drawn  in  New  York, 
and  returned  to  New  York  and  negotiated  there,  is  a  New 
York  acceptance.6  This  is  true  also  of  accommodation  ac- 
ceptances;7 even  though  the  bill  be  expressly  payable  in  the 
place  of  its  acceptance.8 

xHyde  v.  Goodnow,  3  N.  Y.  266  (1850).  So,  Mott  v.  Wright,  4  Biss.  C.  C 
53  (1865). 

'Bell  v.  Packard,  69  Me.  105  (1879). 

'Houston  v.  Potts,  64  N.  C.  33  (1870). 

'Stanford  v.  Pruet,  27  Ga.  243  (1859). 

51  Daniel  833;  Wharton  Confl.  L.  \  459;  2  Parsons  380;  Cook  v.  Litch- 
field, 5  Sandf.  330  (1851)  ;  Stanford  v.  Pruet,  27  Ga.  243  (1859) ;  Davis  v. 
Clemson,  6  M'cLean  622  (1855) ;  Young  v.  Harris,  14  B.  Mon.  556  (1854) ;  Gay 
v.  Rainey,  89  111.  221  (1878).  See,  too,  Overton  v.  Bolton,  9  Heisk.  762  (1872), 
which  case  was.  however,  decided  on  the  point  of  warranty  of  validity  of 
the  note  by  indorsement. 

'Gallaudet  v,  Sykes,  1  MacArth.  489  (1874). 

'First  National  Bank  of  New  York  v.  Morris,  1  Hun  680  (1874)  ;  Bank  of 
■Georgia  v.  Lewin,  45  Barb.  340  (1865) ;  Bowen  v.  Bradley,  9  Abb.  (n.  s.)  395 
(1870) ;  Dickinson  v.  Edwards,  77  N.  Y.  573  (1879),  affirming  13  Hun  405. 

8Tilclen  v.  Blair,  21  Wall.  241  (1874).  "The  place  of  payment,"  says 
Strong,  J.,  p.  247,  "was  doubtless  designated  for  the  convenience  of  the 
acceptors  or  to  facilitate  the  negotiation  of  the  draft."  The  Illinois  statute 
of  Feb.  12th,  1857,  expressly  provides  for  discount  of  such  paper  at  Illinois 
rates. 


22  WHAT    LAW    GOVEBNS. 

But  to  this  rule  as  to  the  place  of  delivery  being  the  place 
of  contract  official  bonds  executed  in  pursuance  of  an  act  of 
congress  form  an  exception  and  are  considered  as  executed  at 
the  seat  of  government  and  not  subject  to  local  law.1 

§  26.  Place  of  Contract — Indicated  by  Date. — The  place 
intended  for  the  making  of  a  note  or  drawing  of  a  bill  is 
generally  shown  by  its  date.  Thus,  where  a  bill  was  dated 
in  Philadelphia  leaving  day  and  year  blank  and  these  were 
filled  up  in  England,  it  was  held  that  the  intention  was  to 
make  a  Pennsylvania  contract  and  that  the  Pennsylvania 
law  governed  it.2  So,  a  note  made  in  Connecticut  but 
dated  in  Louisiana  is  'prima  facie  payable  there  and  is 
accordingly  governed  by  Louisiana  law.3  So,  where  a 
note  was  dated  in  the  State  where  the  maker  resided,  but 
made  elsewhere  and  no  place  of  payment  was  designated, 
and  the  designated  rate  of  interest  was  legal  in  the  place  of 
date  but  usurious  in  the  place  of  making,  the  note  was  pre- 
sumed to  be  payable  where  it  was  dated  and  therefore  valid.4 
A  bona  fide  holder  cannot  of  course  be  prejudiced  by  the 
fact  that  the  note  was  actually  negotiated  in  a  place  where  it 
was  usurious,  if  dated  in  a  place  where  it  would  have  been 
valid.5 

§  27.  Place  of  Contract — Indicated  by  Situation  of  Land 
Security — Residence  of  Parties. — Where  a  loan  is  secured  by 
mortgage  on  land  lying  in  another  State,  a  bond  or  note  and 
mortgage  at  a  rate  of  interest  valid  where  they  are  given 
will  not  be  rendered  usurious  by  the  law  of  the  place  where 

'Cox  v.  United  States,  6  Pet.  203;  Andrews  v.  Pond,  13  lb.  77;  Bell  v.  Bruin, 
1  How.  182;  S.  C,  9  How.  277  ;  Fanning  v.  Consequa,  17  Johns.  511. 

'Lennigv.  Ralston,  23  Penna.  St.  137  (1854);  Longee  v.  Washburn,  16  N. 
H.  134  (1844).     See,  too,  Snaith  v.  Mingay,  1  M.  &  S.  87. 

3Tillotson  v.  Tillotson,  34  Conn.  335  (1867).  In  this  case  the  maker's  place 
of  business  was  also  in  Louisiana. 

1  Bullard  v.  Thompson,  35  Tex.  313(1872).  Especially  if  discounted  as 
well  as  dated  in  such  other  State,  Second  Nat.  Bank  v.  Smoot,  2  MacArth. 
371  (1876). 

61  Daniel  833;  1  Parsons  57;  Second  Nat.  Bank  v.  Smoot,  2  MacArth.  371 
(1876);  Lennigv  Ralston, 23 Penna.  St.  139  (1854) ;  Barkers.  Sterne,  9  Exch. 
684;  Towne  v.  Rice,  122  Mass.  67  (1877)  ;  or  that  the  loan  for  which  it  was- 
given  was  made  elsewhere,  Potter  v.  Tall  man,  35  Barb.  182  (1861). 


PLACE   OF    CONTRACT,  HOW    ASCERTAINED.  23 

the  land  lies.1  This  is  plainly  the  case  where  the  mortgage 
is  merely  collateral  for  a  loan  made  and  used  in  another 
State  and  not  on  the  land  mortgaged."  But  if  the  money  is 
employed  on  the  land  mortgaged,  and  borrowed  for  that  pur- 
pose, it  has  been  held  that  the  lex  loci  rei  sitce  should  apply.3 
In  general,  if  a  note  is  made  in  one  State  but  payable  in 
another  and  secured  by  mortgage  of  lands  in  such  other 
State,  the  laws  of  the  latter  State  should  govern  the  com- 
putation of  interest.*  So,  a  note  made  and  payable  in  New 
York  for  a  New  York  loan,  but  secured  by  a  mortgage  on 
Nebraska  lands,  and  dated  in  Nebraska,  has  been  held  to  be 
a  New  York  contract  and  governed  by  New  York  law  as  to 
usury,  although  it  may  be  void  by  that  law.6  So,  a  note 
made  and  payable  in  South  Carolina  is  governed  by  the  law 
of  that  State,  although  made  by  a  resident  of  another  State 
and  secured  by  a  mortgage  of  lands  lying  in  the  latter  State.6 
But  where  a  note  is  made  between  citizens  of  different  States 
and  secured  by  a  mortgage  on  lands  in  the  place  where  the 
maker  resided,  the  parties  may  lawfully  contract  for  a  rate 
of  interest  valid  there,  although  the  note  was  both  made  and 
payable  in  a  third  State.7  So,  a  note  held  by  a  Wisconsin 
corporation  and  secured  by  a  Wisconsin  mortgage  will  be 
governed  as  to  usury  by  Wisconsin  law,  though  attached  as 

'DeWolf  v.  Johnson,  10  Wheat.  367  (1825);  Dolman  v.  Cook,  1  McCart. 
56,62(1861);  Varick  v.  Crane,  3  Gr.  Ch.  128  (1837);  Andrews  v.  Torrey, 
1  McCart.  355,  357  (1862);  Cotheal  v.  Blydenburgh,  1  Halst.  Ch.  17  (1845'); 
S.  C,  lb.  631  (1847).  Especially  if  the  maker's  domicil  is  in  the  State 
where  the  contract  is  made,  Chase  v.  Dow,  47  N.  H.  405  (1867). 

H  Daniel  850;  Wharton  Confl.  Laws  I  510;  DeWolf  v.  Johnson,  10  Wheat. 
367,  383  (1825) ;  Newman  v.  Kershaw,  10  Wis.  333  (1860) ;  Atwater  v.  Walker, 
1  C.  E.  Gr.  42  (1863) ;  Dolman  v.  Cook,  1  McCart,  56  (1861) ;  Andrews  v. 
Torrey,  lb.  355  (1862) ;  Stapleton  v.  Conway,  3  Atk.  727  (1750) ;  S.  C,  1  Ves. 
427;  Cope  v.  Alden,  53  Barb.  350  (1869). 

31  Daniel  850;  Story  Confl.  Laws  §  305;  Wharton  Confl.  Laws  \  510; 
Connor  v.  Earl  of  Bellmont,  2  Atk.  382. 

4 Little  v.  Riley,  43  N.  H.  109  (1861). 

BSands  v.  Smith,  1  Neb.  108.  On  the  other  hand,  a  mortgage  which  is 
usurious  where  made  has  been  held  to  be  valid  if  in  conformity  with  the 
laws  of  the  place  where  the  land  lies,  Stapleton  v.  Conway,  supra;  Chapman 
v.  Robertson,  6  Paige  627  (1837). 

6Goodrich  v.  Williams,  50  Ga.  425  (1873). 

'Arnold  v.  Potter,  22  Iowa  194  (1867);  Newman  v.  Kershaw,  10  Wis.  333 
(1860). 


24  WHAT    LAAV    GOVERNS. 

collateral  to  one  of  the  company's  own  bonds  payable  in  New 
York  and  negotiated  there.1 

So  far  as  regards  presumptions  arising  from  place  of  resi- 
dence or  business,  it  is  presumed  that  a  contract  is  made  at 
the  maker's  place  of  business  rather  than  at  his  residence, 
where  they  are  in  different  States.2 

§  28.  Lex  Loci  Solutionis — Governs  Validity,  Obligation  and 
Construction. — Where  a  contract  is  made  with  reference  to 
the  place  of  performance,  as  is  generally  the  case,  the  law 
of  the  place  of  contract  yields  to  the  law  of  the  place  of  per- 
formance.3 If  a  place  of  performance  is  expressed,  it  is 
presumed  that  the  contract  was  made  with  reference  to  the 
law  of  that  place.4  It  is  presumed  also  that  this  law  was 
known  to  the  contracting  parties.5  And  this  rule  applies  to 
commercial  paper.  The  law  of  the  place  of  payment  governs 
the  validity,  nature,  obligation  and  interpretation  of  such 
paper.6 

Where  the  place  of  payment  is  different  from  the  place 
of  making,  the  parties  may  stipulate  that  the  contract  shall  be 

1  Lyon  v.  Ewings,  17  Wis.  63  (1863). 

2Varick  v.  Crane,  3  Gr.  Ch.  128  (1837). 

3Robinson  v.  Bland,  2  Burr.  1077;  Andrews  v.  Pond,  13  Pet.  €5  (1839)  ; 
Strieker  v.  Tinkham,  35  Ga.  176  (1866) ;  Prentiss  v.  Savage,  13  Mass.  21 
(1816);  Goddin  v.  Shipley,  7  B.  Mon.  575  (1847);  Fanning  v.  Consequa,  17 
Johns.  511  (1820) ;  Hyde  v.  Goodnow,  3  N.  Y.  266  (1850) ;  Thorp  v.  Craig,  10 
Iowa  461  (1860) ;  Hunt  v.  Standart,  15  Ind.  33  (1860) ;  Freese  v.  Brownell,  6 
Vr.  285  (1871);  Agricultural  National  Bank  v.  Sheffield,  4  Hun  421  (1S75); 
Bank  of  Rutland  v.  Woodruff,  34  Vt.  89  (1861);  Shillito  v.  Reineking,  30 
Finn  345  (1883). 

«1  Edwards  §  217;  2  Parsons  320;  Story  on  Prom.  Notes  §165;  1  Daniel 
84(1;  Short  v.  Trabue,  4  Mete.  299  (Ky  1863);  Arnold  v.  Potter,  22  Iowa 
194  (1867);  Newman  v.  Kershaw,  10  Wis.  333  (1860);  Martin  v.  Martin.  1 
Sm.A  M.  176  (1843);  City  of  Aurora  v.  West,  22  Ind.  88  (1864);  Smith' v. 
Muneie  National  Bank,  29  Ind.  158  (1867);  Allen  v.  Bratton,  47  Miss.  119 
(1872) ;  Mason  v.  Dousay,  35  111.  424  (1864) ;  Fordyce  v.  Nelson,  91  Ind.  447 
(1883).  So,  too,  a  carrier's  contract  for  transportation  of  baggage,  Curtis  v. 
D.  L.  &  W.  R.  R.,  74  N.  Y.  116  (1S78).  On  the  other  hand,  if  a  note  is  made 
by  a  resident  of  Indiana  to  a  resident  of  Ohio,  dated  in  Indiana  and  payable 

at  ,  the  intention  of  the  parties  as  to  place  of  performance,  is  a  ques 

tion  for  the  jury,  Shillito  v.  Reineking,  30  Hun  345  (1883). 

52  Parsons  326;  Freese  v.  Brownell,  6  Vr.  287  (1871). 

"Bvles  402;  2  Parsons  345;  Story  on  Prom.  Notes  $  1H5;  Robinson  v 
Bland,  2  Burr.  1077;  S.  C,  1  W.  Bl.  256;  Rothschild  v.  Currie,  1  Q.  B.  43; 
Allen  v.  Kemble,  6  Moo.  P.  C.  314;  Chapman  v.  Robertson,  6  Ffliqje  627 
(1837) ;  Van  Zant  v.  Arnold,  31  Ga.  210  (1860) ;  Scudder  v.  Union  Net.  Bank, 
1  Otto  406  (1875).     But  see  Joslin  v.  Miller,  14  Neb.  91   (1883),  where  the 


LEX    LOCI   SOLUTIONIS.  25 

governed  by  the  law  of  either  j^lace.1  Thus,  they  may  make 
the  rate  of  interest  follow  the  law  of  their  own  residence,  and 
if  valid  there,  it  will  be  sufficient,  though  usurious  by  the  law 
of  the  place  of  payment.2  If  part  of  a  contract  is  to  be  per- 
formed in  one  State  and  part  in  another,  each  part  should  be 
governed  by  the  law  of  the  place  where  it  is  to  be  performed.3 
Thus,  an  indorsement  for  the  accommodation  of  the  payee 
of  a  note  may  be  governed  by  the  law  of  the  place  of  indorse- 
ment, and  the  maker's  contract  with  the  payee  by  the  law 
of  the  place  where  the  note  was  made.4 

In  general,  the  contract  of  the  maker  of  a  note  or  the 
drawer  of  a  bill  of  exchange  is  governed  by  the  place  where 
it  is  made  payable.5  And  this  is  true  of  bills  of  exchange,6 
municipal  bonds,7  drafts,8  and  checks.9  So,  the  law  of  the 
place  of  payment  will  determine  the  acceptor's  liability,  if 
su*h  place  is  expressed  in  the  instrument.10    But  if  the  bill 

place  of  contract  was  held  to  govern  the  validity.  And  drawing  and  dating 
a  bill  in  Tennessee  upon  a  drawee  in  Louisiana,  under  cover  of  an  Arkansas 
charter,  for  the  purpose  of  evading  a  Tennessee  statute  against  private 
banking,  will  not  make  it  a  valid  bill,  Davidson  v.  Lanier,  4  Wall.  447  (1866). 

'Newman  v.  Kershaw,  10  Wis.  333  (1860) ;  Arnold  v.  Potter,  22  Iowa  194 
(1867).  Where  it  is  expressly  payable  in  another  State  at  a  rate  of  interest 
valid  there,  the  law  of  that  State  will  determine  its  validity,  Pomeroy  v. 
Ainsworth,  22  Barb.  118  (1856) ;  Brown  v.  Gardner,  4  B.  J.  Lea  145  (1879). 

2  Wharton  Conn.  Laws  I  510  n. ;  Kichards  v.  Globe  Bank,  12  Wis.  692  (1860) : 
Vliet  v.  Camp,  13  Wis.  198  (1860). 

s  Pomeroy  v.  Ainsworth,  supra. 

4Greatheadv.  Walton,  40  Conn.  226  (1873). 

51  Edwards  \  228  ;  2  Parsons  335;  Story  on  Prom.  Notes  \  172;  Hunt  v. 
Standart,  15  Ind.  33  (1860) ;  Allen  v.  Bratton,  47  Miss.  119  (1872) ;  Thompson 
t>.  Ketcham,  4  Johns.  285  (1809);  Davis  v.  Clemson,  6  McLean  022  (1855) ; 
Cook  v.  Moffat,  5  How.  295,  as  to  discharge  in  insolvency;  Campbell  v. 
Nichols,  4  Vr.  81  (1868),  as  to  usury.  So,  Johnston  v.  Gawtry,  11  Mo.  App. 
332  (1882),  and  Murphy  v.  Collins,  121  Mass.  6  (1876),  where  the  note  was 
delivered  and  payable  in  the  same  place;  and  Little  v.  Riley,  43  N.  H.  109 
(1861),  where  it  was  secured  by  a  mortgage  on  lands  situate  in  the  place 
named  for  payment. 

'Bright  v.  Judson,  47  Barb.  29  (1866)  ;  Mason  v.  Dousay,  35  111.  424  (1864). 

7 City  of  Aurora  v.  West,  22  Ind.  88  (1864). 

8Orono  Bank  v.  Wood,  49  Me.  26  (1860). 

"Hibernia  National  Bank  v.  Lacombe,  84 |N.  Y.  367  (1881). 

10Byles  405;  1  Daniel  852;  1  Edwards  g  228;  Freese  v.  Brownell,  6  Vr. 
285  (1871);  Frazier  v.  Warfield,  9  Sra.  &  M.  220  (1848);  Bainbridge  v.  Wil- 
oocks,  1  Baldw.  536  (1832);  Don  v.  Lippman,  5  CI.  &  Fin.  1  (1837) ;  Cooper  v. 
Earl  of  Waldegrave,  2  Beav.  282  (1840);  Barnev  v.  Newcomb,  9  Cush.  46 
(1851);  Bright  v.  Judson,  47  Bail..  2'.)  (1866). 


26  WHAT    LAW    GOVERNS. 

is  payable  generally  without  designation  of  a  place  of  pay- 
ment, this  will  not  be  the  rule.1 

§  29.  Lex  Loci  Solutionis  Governs  Indorsement. — In  like 
manner,  an  indorsement  made  in  accordance  with  English 
law  will  be  held  sufficient  there,  if  the  bill  of  exchange  is 
payable  in  England.2  So,  the  law  of  Massachusetts  governs 
the  indorsement  of  a  Massachusetts  note  payable  there, 
though  the  indorsement  was  made  in  New  York.3  And  the 
maker  will  be  governed  by  the  law  of  the  place  of  payment, 
though  the  note  after  being  there  indorsed  was  sent  by  mail 
to  another  State,  and  there  delivered  in  payment  for  goods 
purchased.* 

§  30.  Lex  Loci  Solutionis  Determines  Interest — Usury. — 
The  law  of  the  place  of  payment  as  to  interest  is  also  pre- 
sumed to  be  known  and  intended  by  the  parties.5  The 
place  intended  for  performance  of  a  contract  is  in  general 
the  place  that  determines  the  rate  of  interest  to  be  computed 
on  the  instrument.6  But  if  the  legal  rate  is  higher  at  the 
place  of  payment  than  at  the  place  of  contract',  the  former 
may  be  elected  by  the  parties.7  And  such  higher  rate,  when 
so  chosen  by  the  parties,  may  be  enforced  in  the  State  where 

'Byles  405;  Don  v.  Lippman,  5  CI.  &  Fin.  1 ;  Sprowle  v.  Legge,  2  D.  &  R. 
15 ;  1  B.  &  C.  16 ;  2  Stark.  156  ;  Kearney  v.  King,  2  B.  &  Aid.  301. 

2Byles  404;  Bradlaugh  v.  DeRin,  L.  R.  3  C.  P.  538;  5  76.  473;  Lebel  v.. 
Tucker,  L.  R.  3  Q.  B.  77. 

3  Woodruff  v.  Hill,  116  Mass.  310  (1874). 

*Lee  v.  Selleck,  33  N.  Y.  615  (1865). 

5Freese  v.  Brownell,  6  Vr.  285  (1871);  Wharton  on  Confl.  Laws  \  513; 
Story  on  Conrl.  Laws  \  307. 

6Campbell  v.  Nichols,  4  Vr.  81  (1868);  Freese  v.  Brownell,  6  Ih.  2£5 
(1871) ;  Jewell  v.  Wright,  30  N.  Y.  259  (1861) ;  Jacks  v.  Nichols,  5  N  Y.  178 
(1851) ;  Arnold  v.  Potter,  22  Iowa  191  (1867) ;  Newman  v.  Kershaw,  K)  Wis. 
333  (1860);  Dickinson  v.  Edwards,  77  N.  Y.  573  (1879);  Fitch  v.  Reiner,  8 
Am.  Law  Reg.  654  (1860);  Healy  v.  Gorman,  3  Green  328  (N.  J.  1836); 
Bank  of  Illinois  v.  Brady,  3  McLean  268;  Agricultural  National  Bank  v^ 
Sheffield,  4  Hun  421  (1875).  In  this  case  the  note  was  dated  and  made  pay- 
able at  one  place  and  executed  in  another.  The  same  rule  was  held  to 
govern  in  Little  v.  Riley,  43  N.  H.  1U9,  where  the  note  was  secured  by  a 
mortgage  on  lands  situate  where  it  was  payable;  and  Goodrich  v.  Williams, 
50  Ga.  425  (1873),  where  the  lands  mortgaged  for  security,  as  well  as  the 
residence  of  the  maker,  were  in  a  place  other  than  that  named  for  its  pay- 
ment. 

T2  Parsons  337.     For  cases  on  this  subject,  see  infra. 


LEX    LOCI    SOLUTIONIS    GOVERNS    GEACE.  27 

the  contract  was  made,  though  the  contract  would  have  been 
usurious  if  made  there.1  A  bill  of  exchange  may  even  be 
drawn  on  another  State  to  take  advantage  of  a  higher  local 
rate  of  interest,  and  be  governed  by  the  law  of  such  State.2 
But  if  a  note  is  void  for  usury  where  made,  it  will  be  void 
everywhere,  although  it  may  have  been  made  payable  else- 
where as  a  cover  for  the  usury.3  Thus,  if  a  bill  of  exchange 
is  drawn  in  Illinois  by  a  citizen  of  that  State  and  dated  and 
negotiated  there  at  a  usurious  rate,  it  will  be  governed  as  to 
the  usury  by  the  Illinois  law,  though  accepted  and  payable 
in  New  York.4  But  if  a  note  is  made,  dated  and  payable  in 
the  same  State,  it  has  been  held  that  it  will  be  governed  by 
the  usury  law  of  that  State,  though  negotiated  elsewhere.6 
On  the  other  hand,  if  made  to  be  negotiated,  and  actually 
negotiated  in  another  State,  the  law  of  that  State  will  govern 
as  to  interest,  and  not  the  law  where  the  bill  was  made, 
though  accepted  and  payable  there.6  If,  however,  a  note  is 
payable  generally  at  a  rate  of  interest  which  is  usurious  by 
the  lex  fori,  it  will  not  be  presumed  to  be  so  by  the  law  of 
the  State  where  it  was  made.7 

§  31.  Lex  Loci  Solutionis  Governs  Grace — Currency — Alter- 
ations— Protest. —  The  law  of  the  place  of  payment  also 
governs  as  to  the  days  of  grace  to  be  allowed.8 

The  same  law  of  place  determines  in  what  currency  a  bill 
or  note  is  to  be  paid.9     And  it  has  been  held  that  the  law  of 

ll  Edwards  §  222;  Story  on  Prom.  Notes  \  166;  Lines  v.  Mack,  19  Ind.  223 
(1862)  ;  Fitch  v.  Remer,  8  Am.  Law  Reg.  654  (1860). 

2Smith  v.  Muncie  Nat.  Bank,  29  Ind.  158  (1867).  So,  too,  interest  re- 
served by  mortgage,  Hosford  v.  Nichols,  1  Paige  220  (1828). 

3 Mix  v.  Madison  Ins.  Co.,  11  Tnd.  117  (1858). 

4Tilden  v.  Blair,  21  Wall.  241  (1874). 

5Clayes  v.  Hooker,  4  Hon  231;  Jewell  v.  Wright,  30  N.  Y.  259  (1864); 
Dickinson  v.  Edwards,  20  AH..  L.  J.  310;  77  N.  Y.  573  (1879) ;  Hackettstown 
Bank  v.  Rea,  6  Lans.  455  (1872).  But  see,  contra,  First  Nat.  Bank  v.  Morris, 
1  Hun  680  (1874). 

6Opdykev.  Merwin,  13  Hun  401  (1878). 

'Engler  v.  Ellis,  16  Ind.  475  (1861) ;  Pugh  v.  Cameron,  11  W.  Va.  523  (1877). 

8Byles  404;  Blodgett  v.  Durgin,  32  Vt.  361  (1859). 

9Story  on  Prom.  Notes  \  163  ;  Story  on  Confl.  Laws  \\  270,  308;  Wharton 
on  Confl.  of  Laws  \  437;  Benners  v.  Clemens,  58  Penna.  St.  24  (1868).  In 
like  manner  as  to  weights  and  measures,  Rosseter  v.  Cahlmann,  8  Exch.  361 


28 


WHAT    LAW    (;oVi:i!NS. 


the  place  of  payment  will  determine  whether  the  addition 
of  certain  words  is  a  material  alteration.1 

Where  the  law  of  the  place  of  payment  does  not  require 
notice  of  dishonor  on  refusal  to  accept  a  bill  of  exchange,  it 
is  not  necessary  to  enable  the  holder  of  the  bill  to  look  to  an 
English  indorser,  though  between  such  indorser  and  his  in- 
dorsee it  would  be.2  On  the  other  hand,  a  New  York  indorser 
will  not  be  entitled  to  a  discharge  by  reason  of  failure  to 
demand  payment  and  protest  a  bill  of  exchange  for  non- 
payment after  protest  for  non-acceptance,  such  second  demand 
and  protest  being  required  by  the  law  of  France,  where  the 
bill  was  payable,  but  not  by  that  of  New  York.3  And  the 
law  of  the  place  of  payment  governs  also  as  to  the  notice  of 
dishonor  that  is  necessary.  Thus  the  English  courts  have 
recognized  the  French  law  of  protest  as  governing  an  Eng- 
lish indorser.4  The  same  rule  has  been  followed  in  the 
United  States  as  to  the  sufficiency  of  protest.5 

§  32.  Drawer's  Liability — Governed  by  what  Law. — The 
contract  of  the  drawer  is  to  pay  generally,  L  e.  at  the  place 
where  the  bill  is  drawn,  if  no  other  place  of  payment  is  ex- 
pressed.6 His  contract  with  the  payee  is  governed  by  that 
law.7  The  law  of  that  place  determines  the  damages  and 
interest  for  which  he  becomes  liable,8  and  the  legality  of  his 
contract  in  reference  to  usury  laws.9 

Holland  v.  Hatch,  15  Ohio  St.  464  (1864). 

JByles  405;  Home  v.  Rouqnette,  L.  R.  3  Q.  B.  514  (1878). 

3  2  Parsons  336;  Storv  on  Bills  g  176;  Ay  mar  v.  Sheldon,  12  Wend.  439 
(1834). 

4Byles405;  2  Parsons  336;  Story  on  Prom.  Notes  \  177;  as  to  time  for 
sending  notice,  Rothschild  v.  Currie,  1  Q.  B.  43;  and  as  to  mode  of  sending 
it,  Hirschfeld  v.  Smith,  L.  R.  1  C.  P.  340. 

5Chatham  Bank  v.  Allison,  15  Iowa  357  (1S63). 

61  Daniel  853;  Freese  v.  Brownell,  6  Vr.  285  (1871) ;  Everett  v.  Vendrves, 
19  N.  Y.  436  (1850)  ;  Hunt  v.  Standart,  15  Ind.  33  (1860) ;  Raymond  v. 
Holmes,  11  Tex.  54  (1853);  Kuenzi  v.  Elvers,  14  La.  An.  392  (1859);  Len- 
nig  v.  Ralston,  23  Penna.  St.  137,  140  (1854) ;  Price  v.  Page,  24  Mo.  65  (1856)  ; 
Bouldin  v.  Page,  lb.  594  (1857) ;  Page  v.  Page,  lb.  595  (1857) ;  Smith  v.  Mead, 
.3  Conn.  253  (1820) ;  Blodgett  v.  Durgin,  32  Vt.  361  (1859). 

'Byles  274;  1  Daniel  853;  Story  on  Bills  I  131.  So.  too,  if  drawer  and 
■drawee  reside  in  different  places,  Gibbs  v.  Fremont,  9  Exch.  25. 

"Crawford  v.  Branch  Bank,  6  Ala.  13  (1844). 

"Merchants'  Nat,  Bank  v.  Griswold,  72  N.  Y.  472  (18781. 


PLACE   OF    PAYMENT.  291 

§  33.  Place  of  Payment — What. — The  presumption  is  that 
a  note  dated  at  a  certain  place  is  made  and  payable  there,  if 
no  other  place  of  payment  is  expressed.1  And  the  place  of 
the  date  has  been  held  to  be  prima  facie  the  place  of  pay- 
ment where  it  is  the  maker's  residence  or  place  of  business, 
though  the  note  was  actually  made  elsewhere.2  But  a  mort- 
gage made  in  one  country  on  lands  lying  in  another  has  been 
held  to  be  payable  prima  facie  where  the  lands  lie  and  to  be 
governed  by  the  law  of  that  place.3  If  no  place  of  payment 
is  named,  parol  evidence  is  not  admissible  to  show  that  some 
special  place  of  payment  was  agreed  on.4 

Where  a  bill  of  exchange  is  specially  addressed  to  the 
drawee,  such  address  is  presumed  to  be  the  place  intended 
for  its  payment.5  So,  a  general  acceptance  is  presumably 
payable  where  it  is  made;6  and,  in  Scotland,  at  the  place  where 
the  acceptor  resides  at  the  maturity  of  the  bill.7  On  the 
other  hand,  the  acceptor's  liability  for  interest  and  damages 
has  been  held  to  be  at  the  rate  fixed  by  the  law  of  the  place 
where  the  bill  was  drawn.8 

An  indorsement  has  been  held  to  be  prima  facie  payable 

n  Daniel  841;  2  Parsons  320;  Wilson  v.  Lazier,  11  Gratt.  477  (1854); 
Blodgett  v.  Durgin,  32  Vt.  361  (1859) ;  Thompson  v.  Ketcham,  4  Johns.  285 
(1809);  Short  v.  Trabue,  4  Mete.  299  (Ky.  1863);  Backhouse  v.  Selden,  29 
Gratt.  581  (1877). 

2Tillotson  v.  Tillotson,34Conn.  335  (1867).  Especially  if  such  intendment 
be  necessary  to  make  the  instrument  valid  under  the  laws  against  usury, 
Bullard  v.  Thompson,  35  Tex.  313  (1872). 

sStapleton  v.  Conway,  3  Atk.  727;  Chapman  v.  Robertson,  6  Paige  627 
(1827). 

42  Parsons  334;  Frazier  v.  Warfield,  9  Sm.  &  M.  220  (1848).  But  see,  con- 
tra, Blodgett  v.  Durgin,  32  Vt.  361  (1859). 

51  Daniel  841;  Worcester  Bank  v.  Wells,  8  Mete.  107  (1844);  Lizardi  v. 
Cohen,  3  Gill  430  (1845) ;  Freese  v.  Brownell,  6  Vr.  285  (1871). 

•Musson  v.  Lake,  4  How.  262  (1S46)  ;  Todd  v.  Bank  of  Kentucky,  3  Bush 
626  (1868).  In  this  case  it  was  held  that  the  acceptor  had  an  implied  author- 
ity to  designate  a  place  of  payment  and  would  then  be  governed  by  the 
laws  of  that  place. 

'Don  v.  Lippman,  5  CI.  &  Fin.  1,  12  (1837).  So,  in  Tennessee,  an  accept- 
ance has  been  held  payable  at  the  acceptor's  place  of  residence,  Frierson  v. 
Galbrath,  12  B.  J.  Lea  129  (1883). 

8 Bailey  v.  Heald,  17  Tex.  102  (1856) ;  Raymond  v.  Holmes,  11  lb.  54  (1853) ; 
contra,  Abel  v.  McMurray,  10  Tex.  350  (1853).  And  in  Frierson  v.  Galbrath, 
12  B.  J.  Lea  129  (1883),  the  acceptor's  liability  for  interest  was  determined 
by  the  law  of  his  residence,  the  bill  being  considered  payable  there. 


30  WHAT    LAW    GOVERNS. 

tit  the  residence  of  the  holder,  and  governed  by  the  law  of 
that  place.1  An  intention,  however,  to  make  it  payable  at 
the  residence  of  the  makers  and  indorsers,  rather  than  that  of 
the  holder,  may  be  inferred  from  circumstances  and  subject 
the  indorsement  to  the  law  of  the  indorser's  own  residence.2 
§  34.  Presumptions  as  to  Foreign  Law. — It  is  to  be  remem- 
bered that  courts  of  one  State  take  no  judicial  notice  of  the 
laws  of  another.3  And  they  are  not  concluded  by  the  deci- 
sions of  the  courts  of  another  State  as  to  the  application  of 
the  common  law  or  of  the  lex  mercatoria  in  such  other  State.4 
When  the  laws  of  another  State  are  relied  upon  they  must 
be  proved  affirmatively,5  and  if  not  so  proved  they  will  be 
presumed  to  be  the  same  as  the  lex  fori.6 

lLee  v.  Selleck,  33  N.  Y.  615  (1865). 

2  Van  Zant  v.  Arnold,  31  Ga.  210  (1860) ;  Billiard  v.  Thompson,  35  Tex.  313, 
318  (1872). 

3Byles40S;  1  Daniel  847;  Story  on  Confl.  Laws  §  637;  Legs;  v.  Legg,  8 
Mass.  99,  101  (1811) ;  Bean  v.  Briggs,  4  Iowa  464,  468  ;  Hunt  v.  Johnson,  44 
N.  Y.  27  (1S70) ;  Mostyn  v.  Fabrigas,  Cowp.  174;  Male  v.  Roberts,  3  Esp.  163. 

1  First  Nat.  Bank  of  Michigan  v.  Green,  33  Iowa  140  (1871). 

5Byles  408;  Story  on  Confl.  Laws  g  638;  1  Daniel  847;  2  Parsons  334;  1 
Edwards  ?  9;  Benham  v.  Lord  Mornington,  3  C.  B.  133;  Hunt  v.  Johnson, 
44  N.  Y.  27,  40  (1870) ;  Dunn  v.  Adams,  1  Ala.  527  (1849) ;  Whidden  v.  Seelye, 
40  Me.  247,  253  (1855);  Bean  v.  Briggs,  4  Iowa  464,  467  (1857);  Harper  v. 
Hampton,  1  Harr.  &  J.  622,  6S7  (1805) ;  Martin  v.  Martin,  1  Smed.  &  M.  176 
(1843);    Uhler  v.  Semple,  5  C.  E.   Gr.  288,  294  (1869);   Allen  v    Watson, 

2  Hill  (S.  C.)  319;  Crozier  v.  Hodge,  3  La.  357;  Kline  v.  Baker,  99 
Mass.  253 ;  Knapp  v.  Abell,  10  Allen  485  ;  Bowditch  v.  Soltyk,  99  Mass.  136; 
Campion  v.  Kille,  1  McCart.  229;  Ball  v.  Franklinite  Co,  3  Vr.  102;  Dela- 
field  v.  Hand,  3  Johns.  310;  Francis  v.  Insurance  Co.,  6  Cowen  404,  429; 
Lincoln  v.  Battelle,  6  Wend.  475;  Dollfus  v.  Frosch,  1  Denio  367 ;  Talbot  v. 
Seeman,  1  Cranch  1,  38;  Haven  v.  Foster,  9  Pick.  Ill,  129;  Palfrey  v.  Port- 
land, &c,  R.  R.  Co.,  4  Allen  55;  Brackett  v.  Norton,  4  Conn.  517;  Mostyn 
v.  Fabrigas,  Cowp.  174 ;  Freemoult  v.  Dedire,  1  P.  Wins.  429  ;   Male  v.  Roberts, 

3  Esp.  163;  Smith  v.  Blagge,  1  Johns.  238;  Territt  v.  Woodruff,  19  Vt.  182; 
Taylor  v.  Bank  of  Illinois,  7  T.  B.  Mon.  576;  Barrows  v.  Downs,  9R.  I.  446; 
Bryant  v.  Kelton,  1  Tex.  434;  McDeed  v.  McDeed,  67  111.  545;  Rape  v.  Hea- 
ton,  9  Wis.  828 ;  Walsh  v.  Dart,  12  Wis.  635 ;  Nelson  v.  Bridport,  8  Beav.  527  ; 
Baltimore  and  Ohio  R.  R.  Co.  v.  Glenn,  28  Md.  287  ;  Gardner  v.  Lewis,  7  Gill 
377  ;  DeSobry  v.  DeLaistre,  2  Harr.  &  J.  191 ;  Norris  v.  Harris,  15  Cal.  226  ; 

1  Chitty  Plead.  219;  1  Phill.  Ev.  301,  302 n.)  Daniell  Ch.  Pr.  (4  Am.  Ed.)  95, 
864;  1  Greenleaf  Ev.  \\  486,  488;   Best  Ev.  \\  33,  513  ;  Carnegie  v.  Morrison, 

2  Mete.  381,  404  (1841) ;  Mason  v.  Dousay,3o  111.424,  433  (1864) ;  McDougald 
v.  Rutherford,  30  Ala.  253  (1857).  So,  a  local  custom  as  to  days  of  grace, 
Goddin  v.  Shipley,  7  B.  Mon.  575  (1847). 

6  Byles  408  ;  1  Daniel  847  ;  2  Parsons  334 ;  1  Edwards  §  9 ;  Brown  v.  Gracey, 
D.  &  R.  N.  P.  C.  41  n.;  Hunt  v  Johnson,  44  N.  Y.  27,  40  (1870) ;  Dunn  v. 
Adams,  1  Ala.  527,  529  (1840) ;  Fouke  v.  Fleming,  13  Md.  392  (1858) ;  Whid- 
den v.  Seelye,  40  Me.  247,  254  (1855) ;  Legg  v.  Legg,  8  Mass.  99,  101  (1811)  ; 
Bean  v.  Briggs,  4  Iowa  464,  468  (1857) ;  Harper  v.  Hampton,  1  Harr.  &  J. 


PRESUMPTIONS    AS    TO    FOREIGN    LAW.  31 

Thus,  a  third  party  indorsing  a  note  before  its  delivery,  is 
by  Massachusetts  law  an  indorser,  and  this  will  be  presumed 
to  be  the  Rhode  Island  law  as  to  an  indorsement  made  there, 
in  an  action  on  it  in  the  courts  of  Massachusetts.1  So,  the 
foreign  rate  of  interest,  if  not  proved,  is  presumed  to  be  the 
same  as  that  of  the  forum}  But  this  presumption  will  not 
be  made  to  render  a  note  void  for  usury;3  or  because  it  was 
made  on  Sunday;*  or  because  of  the  maker's  infancy.5  In 
like  manner,  the  foreign  law  as  to  rate  of  damages  is  prima 
facie  the  same  as  the  lex  fori?  So,  as  to  days  of  grace.7  So 
the  lex  loci  contractus  will  be  presumed  to  allow  an  indorsee 
to  sue  the  indorsers  before  exhausting  his  remedy  against  the 
maker,  if  this  is  the  lex  fori? 

A  country  which  has  separated  from  another  will  generally 
be  presumed,  however,  to  have  continued  its  former  laws  in 

622,  687  (1805);  Kuenzi  v  Elvers,  14  La.  An.  392  (1859);  Hill  v.  Wilker,  41 
Ga.  449  (1871);  Flato  v.  Mulhall,  72  Mo.  522  (1880);  Cooper  v.  Reaney,  4 
Minn.  528  (1860) ;  Brimhall  v.  Van  Canipen,  8  Minn.  13  (1862)  ;  Donegan 
v.  Wood,  49  Ala.  242  (1873)  ;  Farhni  v.  Ramsee,  19  End.  400  (1862) ;  Holmes 
v.  Bronghton,  10  Wend.  75;  Leavenworth  v.  Brockevvay.  2  Hill  201; 
McDongald  v.  Rutherford,  30  Ala.  253  (1S57) ;  Allen  v.  Watson,  2  Hill  (S.  C.) 
319 ;  Crozier  v.  Hodge,  3  La.  357  ;  Chapin  v.  Dobson,  7S  N.  Y.  74  (1879). 

'Dubois  v.  Mason,  127  Mass.  37  (1879). 

'Cooper  v.  Reaney,  4  Minn.  528  (I860);  Hawley  v.  Sloo,  12  La.  An.  815; 
Martin  v.  Hazard  Powder  Co.,  2  Col.  596  (1875).  And  if  the  contract  is 
governed  by  the  law  of  another  State  and  rendered  usurious  by  such  law, 
that  must  be  proved,  Pomeroy  v.  Ainsworth,  22  Barb.  118  (1856)  ;  Cutler  v. 
Wright,  22  N.  Y.  472  (1860).  So  of  a  foreign  bond,  Thompson  v.  Bowles,  2 
Sim.  194. 

sEngler  v.  Ellis,  16  Ind.  475  (1861) ;  Pugh  v.  Cameron,  11  W.  Va.523  (1877) ; 
White  v.  Friedlander,  35  Ark.  52  (1S79) ;  Forsyth  v.  Baxter,  3  111.  9  (1839) ; 
Greenwade  v.  Greenwade,  3  Dana  497  (1835).  So,  too,  where  the  controlling 
law  is  that  of  the  place  of  payment,  the  contract  will  not  be  presumed 
usurious,  because  it  would  be  so  by  the  lex  fori,  Martin  v.  Martin,  1  Sra.  & 
M.  17(5  (1843). 

40'Rourke  v.  O'Rourke,  43  Mich.  58  (1880).  But  see,  contra,  Hill  v. 
Wilker,  41  Ga.  449  (1871);  Brimhall  v.  Van  Campen,  8  Minn.  13  (1862); 
Sayre  v.  Wheeler,  31  Iowa  112  (1S70). 

5Thompson  v.  Ketcham,  S  Johns.  146  (1811).  But  see,  Seyfert  v.  Edison, 
16  Vr.  393  (1S83),  where  a  transfer  from  husband  to  wife  made  in  Pennsyl- 
vania was  presumed  in  New  Jersey  to  be  illegal  as  at  common  law. 

6Kuenzi  v.  Elvers,  14  La.  An.  391  (1859). 

'Wood  v.  Corl,  4  Mete.  2!):',  (1842);  Dollfus  v.  Froscb,  1  Denio  367  (1845). 
But  in  Lucas  v.  Ladew,  28  Mo.  342  (1859),  the  common  law  as  to  grace, 
abolished  by  statute  in  Missouri,  was  presumed  in  Missouri  to  remain  un- 
changed in  New  York. 

"Bean  v.  Briggs,  4  Iowa  467  (1857);  Bernard  v.  Barry,  1  Gr.  388,  391 
(Iowa  1S48). 


32 


WHAT    LAW    GOVERNS. 


force,  as  in  the  case  of  the  States  formerly  governed  by  the. 
English  common  law.1  But  the  common  law  will  not  be 
presumed  to  govern  in  Texas,  as  that  State  was  never  subject 
to  Great  Britain.2 

The  lex  mercatoria,  being  of  general,  if  not  universal  appli- 
cation, has  been  held  to  he  prima  facie  the  foreign  law,  as  to 
the  allowance  of  days  of  grace.3  So,  as  to  the  negotiability 
of  bonds  or  coupons  drawn  in  negotiable  form.4 

Dickinson  v.  Hoomes,  S  Gratt.  353,408  (1852);  Arayo  v.  Currell,  1  La.  52S 
(1830).  Thus,  a  wife  will  be  presumed  in  New  Jersey  incapable  by  Pennsyl- 
vania law,  as  by  the  common  law,  of  binding  herself  as  maker  of  an  ac- 
commodation note  for  her  husband,  Seyfert  v.  Edison,  16  Vr.  393  (1883). 
So,  as  to  -common  law  of  grace,  Lucas  v.  Ladew,  28  Mo.  341  (1859) ;  of 
negotiability,  Dunn  v.  Adams,  1  Ala.  527 ;  of  admissibility  of  want  oj  con- 
sideration as  a  defense,  Crouch  v.  Hall,  15  111.  263  (1856). 

2Flato  v.  Mulhall,  72  Mo.  522  (1880).  Nor  can  the  common  law  be  pre- 
sumed to  have  force  in  Russia,  Savage  v.  O'Neil,  44  N.  Y.  298  (1871). 

•Reed  v.  Wilson,  12  Vr.  29  (1879) ;  Lucas  v.  Ladew,  28  Mo.  342  (1859). 

♦Tyrell  v.  Cairo  and  St.  Louis  R.  R.  Co.,  7  Mo.  App.  294  (1879). 


CAPACITY.  33 


II.    r,*£CIAL    APPLICATIONS. 

85.  Capacity — What  law  governs. 

36.  Form — What  law  governs. 

37.  Nature  and  Interpretation— What  law  governs. 

38.  Liability  of  Drawer — Surety— Indorser. 

39.  Liability— Governed  by  Place  of  Payment. 

40.  Validity — What  law  governs. 

41.  Interest — Implied  rate. 

42.  Damages— Exchange— Currency. 

43.  Usury — Election  between  different  rates. 

44.  Place  of  Contract. 

4.">.  Situs  of  Landed  Security. 

46.  Place  of  Payment. 

47.  Negotiability — What  law  governs. 

48.  Transfer — Form  governed  by  what  law. 

49.  Transfer  by  Executor — Suit  by  Assignee. 

50.  Bona  fide  Holder— Admissibility  of  Defense. 

51.  Grace— What  law  governs. 

52.  Demand — Protest — What  law  governs. 

53.  Remedy — Governed  by  lex  fori.  * 
.">4.  Limitation  of  Actions — What  law  governs. 

55.  Parties — Evidence — What  law  governs. 

56.  Damages— Interest — Exchange — Set-Off. 

57.  Discharge — Payment — What  law  governs. 

58.  Insolvent's  Discharge— What  law  governs. 

59.  Foreign  Statutes  as  to  Conflict  of  Laws. 

§  35.  Capacity — What  Law  Governs. — The  capacity  of  the 
parties  to  a  contract  is  in  general  to  be  determined  by  the 
lex  loci  contractus.1  Thus,  an  infant's  contract  will  be  sus- 
tained, if  valid  by  the  lex  loci  contractus.2  So,  the  contract 
of  a  married  woman.3  But  in  Mississippi  the  note  of  a 
married  woman  for  supplies  to  her  plantation  has  been  held 
enforceable  by  Mississippi  law,  although  made  in  another 
State  where  it  could  not  have  been  enforced.4     And,  on  the 

'2  Parsons  349;  Story  on  Confl.  Laws  §  163.  So  held  as  to  capacity  to 
make  a  deed,  Hney's  Appeal,  1  Grant  Cas.  51  (1854).  But  it  seems  that 
under  the  law  of  France  a  married  woman's  capacity  to  contract  is  decided 
according  to  the  law  of  her  domicil,  Gamier  v.  Poydras,  13  La.  177  (1838). 

2 So,  as  to  an  infant's  contract  for  necessaries,  Male  v.  Eoberts,  3  Esp.  163. 
But  see  Story  on  Confl.  Laws  i.'i  66,  "•>>  And  the  law  of  the  place  of  forum 
controls  the  matter  of  minority,  when  it  comes  in  question,  only  on  the 
point  of  the  minor's  authoritv  to  maintain  his  action,  Barrera  v.  Alpuente, 
18  Martin  69  (1827). 

3  Bell  v.  Packard,  69  Me.  105  (1879).  But  see  Hayden  v.  Stone,  13  R.  1. 106 
(1880),  in  which  case  the  Rhode  Island  courts  refused  to  enforce  against  a 
married  woman  resident  in  Massachusetts  a  note  made  by  her  there,  she 
being  incapable  of  such  contract  by  the  laws  of  Rhode  Island. 

'Shacklett  v.  Polk,  51  Miss.  378  (1S75). 


#4  WHAT    LAW    GOVERNS. 

other  bund,  the  Mississippi  courts  have  refused  to  enforce  the 
note  of  a  married  woman  resident  in  Mississippi,  though 
dated  in  Louisiana  and  valid  there  by  statute.1 

A  transfer  made  by  an  executor  or  administrator  will  be 
sufficient,  if  it  is  valid  by  the  law  of  the  place  of  transfer.2 
And  although  it  is  a  well-settled  rule,  already  referred  to, 
that  a  State  will  not  enforce  foreign  laws  that  contravene  its 
own  policy,  yet  a  note  made  to  a  foreign  corporation  may  be 
enforced  notwithstanding  that  the  law  of  the  forum  as  to 
license  of  such  corporation's  business  has  not  been  complied 
with.3 

§  36.  Form — What  Law  Governs. — A  contract  is  also  gov- 
erned as  to  all  questions  of  formality  of  execution  by  the 
law  of  the  place  where  it  is  made.4  If  defective  in  form  and 
therefore  invalid  there,  it  is  so  everywhere.5  Thus,  a  verbal 
acceptance  is  valid  or  otherwise  according  to  the  law  of  the 
place  of  acceptance,  not  of  the  place  of  drawing  the  bill.6  But 
a  promise  to  accept  may  be  enforceable  as  a  valid  contract, 
though  not  equivalent  where  it  was  given  to  an  acceptance.7 

In  like  manner,  an  indorsement  in  blank  made  in  France 

'Bank  of  Louisiana  v.  Williams,  46  Miss.  618  (1872). 

31  Daniel  843  ;  2  Parsons  373  n. ;  Story  on  Confi.  Law*  §  350;  Wharton  on 
Confl.  Laws  §  457 ;  Harper  v.  Butler,  2  Pet.  239  (1829) ;  Andrews  v.  Carr,  26 
Miss.  577  (1853)  ;  Owen  v.  Moody,  29  lb.  79  (1855).  But  see.  contra,  Thomp- 
son v.  Wilson,  2  N.  H.  291  (1820) ;  Stearns  v.  Burnham,  5  Me.  261  (1828). 

8Shook  r.  The  Singer  Manufacturing  Co.,  61  Ind.  520  (1878). 

*Story  on  Bills  §  131 ;  1  Daniel  830;  2  Parsons  317;  Storv  on  Prom.  Notes 
§158;  Wood  v.  Gil>hs,  35  Miss.  559(1858);  Dacosta  v.  Davis.  4  Zah.  319 
(1854);  Hyde  v.  Goodnow,  3  N.  Y.  266  (1850);  Evans  v.  Anderson,  78  III. 
558  (1875).  So,  in  Great  Britain,  Bills  of  Exeh.  Act,  1882,  \  72.  But  if  in 
form  it  accords  with  the  requirements  of  English  law,  it  is  valid  as  hetween 
all  parties  to  it  in  Great  Britain,  lb. 

5Thayer  v  Elliott,  16  N.  H.  102  (1844) ;  Van  Sehaick  v.  Edwards,  2  Johns. 
Cas.  355  (1801) ;  Kanaga  v.  Taylor,  7  Ohio  St.  134  (1857) ;  Ford  v.  Buckeye 
Ins.  Co.,  6  Bush  133  (1S69) ;  Palmer  v.  Farrington,  1  Ohio  St.  253  (1S53) ; 
Jewell  v.  Wright,  30  N.  Y.  259  (1864). 

6Mason  v.  Dousay,  35  111.  424  (1864) ;  Bissell  v.  Lewis,  4  Mich.  450  (1857) ; 
Bank  of  Rutland  v.  Woodruff,  34  Vt.  89  (1861).  But  the  mere  fact  of _ the 
drawee's  heing  resident  in  another  place  will  not  affect  an  acceptance  given 
by  a  member  of  the  drawee's  firm  in  the  place  where  the  bill  was  drawn, 
Scudder  v.  Union  Nat.  Bank,  1  Otto  406  (1875). 

'Russell  v.  Wigidn,  2  Storv  213.  231  (1842) ;  Carnegie  v.  Morrison,  2  Mete. 
381  (1841) ;  Bissell  v.  Lewis,' 4  Mich.  450,  460  (1857) ;  Barney  v.  Newcomh,  9 
Gush.  46  (1851). 


NATURE.  35 

is  void  there  and  therefore  will  not  be  enforced  in  an  Eng- 
lish court  though  valid  in  England.1  But  a  Bank  of  England 
note  transferred  by  delivery  in  France,  where  such  transfer 
is  insufficient,  has  been  held  in  England  (the  place  both  of 
the  original  contract  and  of  the  forum)  to  have  been  lawfully 
transferred.2  On  the  other  hand,  where  a  note  has  been 
transferred  according  to  the  law  of  the  place  of  transfer  by 
delivery,  but  such  transfer  is  bad  for  want  of  indorsement 
by  the  law  both  of  the  place  of  the  original  contract  and  of 
the  forum,  it  will  not  be  enforced  at  suit  of  the  holder  in  the 
courts  of  the  latter  place.3  So,  if  it  is  illegal  where  made  for 
want  of  a  statutory  certificate.4 

If  a  bill  or  note  is  void  for  want  of  a  stamp  by  the  lex  loci 
contractus,  it  will  be  void  everywhere.5  But  if  the  Stamp  Act 
relates  simply  to  admissibility  in  evidence,  its  effect  will  be 
confined  to  the  courts  of  its  own  State.6 

§  37.  Nature — Interpretation — What  Law  Governs. — The 
nature,  interpretation  and  obligation  of  contracts  are  all  to 
be  determined  by  the  law  of  the  place  of  contract.7     And  as 

^rimbey  v.  Vignier,  1  Bing.  X.  C.  151;  S.  C,  4  Moo.  &  S.  695;  S.  C,  6  C. 
&  P.  25. 

2Dela  Chaumette  v.  Bank  of  England,  2  B.  &  Ad.  385;  S.  C.,9  B.  &  C.  208. 

3Roosa  v.  Crist,  17  111.  450  (1S55). 

4 Moore  v.  Clopton,  22  Ark.  125  (1860). 

5Alves  v.  Hodgson,  7  T.  R.  241;  Bristow  v.  Seqneville,  5  Exch.  279;  Clegg 
v.  Levy,  3  Campb.  166.  A  contrary  doctrine  was  formerly  held  in  James  v. 
Catherwood,  3  D.  &  R.  190 ;  Wynne  v.  Jackson,  2  Russ.  351.  And  an  excep- 
tion is  made  to  the  rule  where  the  bill  or  note  is  payable  in  the  place  where 
suit  is  brought,  Ludlow  v.  Van  Rensselaer,  1  Johns.  94  (1806).  But  the  con- 
tra rv  is  now  provided  in  Great  Britain  as  to  bills  issued  abroad,  Bills  of 
Exch.  Act,  1882,  §72. 

6Fant  v.  Miller,  17  Gratt.  47  (1866);  Lambert  v.  Jones,  2  Patt.  &  H.  144 
(1856). 

72  Parsons  819;  Story  on  Prom.  Notes'^  159-161;  1  Edwards  §  218 ;  1 
Daniel  830;  Hyde  v.  Goodnow,  3  N.  Y.  266  (1850);  Evans  v.  Anderson,  78 
III.  .")")S  (1875)  ;  'Bulger  v.  Roche,  11  Pick.  36,  3S  (1831)  ;  Goodman  v.  Munks, 
8  Port.  84  (1838);  Mineral  Point  R.  R.  Co.  v.  Banon,  83  111.  365  (1876); 
Carnegie  v.  Morrison.  2  Mete.  381,  397  (1841)  ;  Bissell  v.  Lewis,  4  Mich.  450, 
459  (1857) ;  Fitch  v.  Remer,  8  Am.  Law  Reg.  654  (1860).  So,  as  to  interpre- 
tation alone,  Bell  v.  Packard,  69  Me.  105  (1S79) ;  Pease  v.  Pease,  35  Conn.  131 
(1868);  Arnold  v.  Potter,  22  Iowa.  194(1867);  Armour  v.  McMichael,  7  Vr. 
92(1872);  Varick  v.  Crane,  3  Gr.  Ch.  128  (1SS7);  Benners  v.  Clemens,  58 
Penna.  St.  24  (1868) ;  Chapman  v.  Robertson,  6  Paige  627  (1837) ;  Chartres  v. 
Cairnes,  4  Mart.  (n.  s  )  1  (1825)  ;  Warder  r.  Arell,  2  Wash.  282  (Va.  1826); 
Smith  r.  Smith,  2  Johns.  235(1807).     So,  as  to  nature  and  interpretation, 


36  WHAT    LAW    GOVERNS. 

to  the  construction  of  the  laws  of  foreign  States  it  has  been 
held  that  the  decisions  of  their  own  courts  are  binding  upon 
the  courts  of  other  States.1 

§  38.  Liability  of  Drawer — Surety — Indorser. — The  lia- 
bility of  the  drawer  of  a  bill  is  governed  by  the  lex  loci  con- 
tractus except  in  cases  where  the  lex  loci  solutionis  is  intended 
to  control.2  Thus  the  drawer's  liability  to  an  indorsee  on 
non-acceptance  is  determined  by  the  place  of  contract  and 
not  by  the  place  of  indorsement.3  So,  the  indorser's  right 
to  set  up  equitable  defenses  is  determined  by  the  law  of  the 
place  of  his  contract  and  will  not  be  affected  by  the  law  of 
any  place  where  the  note  may  be  subsequently  transferred.4 
So,  failure  of  consideration  may  be  set  up  by  the  drawer  of 
a  bill  even  against  a  bona  fide  holder  for  value  under  the 
law  of  the  place  where  the  bill  was  drawn,  though  it  would 
not  have  been  admissible  by  the  laws  of  the  drawer's  resi- 
dence.5 

So,  a  principal's  liability  to  his  surety  on  a  note  is  gov- 
erned by  the  law  of  the  place  of  contract,  and  not  affected 
by  a  subsequent  change  of  domicil.6 

The  indorser's  liability  is  governed,  as  we  have  seen,  by 

Pearsall  v.  Dwight,  2  Mass.  S4  (1S06).  So,  as  to  interpretation  and  obliga- 
tion, Steele  v.  Curie,  4  Dana  881  (1836) ;  Porter  v.  Munger,  22  Vt.  191  (1850). 
So,  as  to  obligation  alone,  Kanaga  v.  Taylor,  7  Ohio  St.  134,  147  (1857)  ; 
Armendiaz  v.  Lema,  40  Tex.  291  (1S74) ;  Jewell  v.  Wright.  30  N.  Y.  259  (1864) ; 
Churchill  v.  Cole,  32  Vt.  93  (1859);  Atwater  v.  Walker,  1  C.  E.  Gr.  42;. 
S.  C,  2  McCart.  502  (1863)  ;  Thorp  v.  Craig,  10  Iowa  461  (1860)  ;  Harrison  v. 
Edwards.  12  Vt.  648,  652  (1840).  So,  as  to  nature  and  obligation,  Trasher 
v.  Everhart,  3  Gill  &  J.  234  (1831);  Wood  v.  Gibbs,  35  Miss.  559  (185S); 
Story  on  Bills  I  131.  So,  as  to  nature  only,  Stevens  v.  Norris,  30  N.  H.  466 
(1855).  The  English  Bills  of  Exchange  Act  of  1882  makes  the  interpreta- 
tion to  be  determined  by  the  law  of  the  place  of  contract,  except  as  to  for- 
eign indorsements  of  inland  bills,  which  are  to  be  interpreted  "as  regards 
the  payer  "  by  English  law,  $  72. 

'Hunt  v.  Hunt,  72  N.  Y.  217  (1878). 

2 2  Parsons  335;  1  Edwards  §228;  Story  on  Bills  $  131;  Story  on  Prom. 
Notes  $  172;  Thorp  v.  Craig,  10  Iowa  461  (1860) ;  Wood  v.  Gibbs,  35  Miss. 
559  (1858). 

3 Everett  v.  Vendryes,  19  N.  Y.  436  (1859). 

4 2  Parsons  33S ;  1  Edwards  ?  228 ;  1  Daniel  851 ;  Wilson  v.  Lazier,  11  Gratt. 
477,  482  (1854) ;  Yeatman  y.  Cullen,  5  Black f.  241  (1839) ;  Stacy  v.  Baker,  2 
111.  417  (1837) ;  Brabston  v.  Gibson,  9  How.  263  (1850). 

5  Wood  v.  Gibbs,  35  Miss.  559  (185S). 

"Long  v.  Templeman,  24  La.  An.  564  (1872). 


LIABILITY.  37 

the  place  where  the  indorsement  is  made.1  Want  of  dili- 
gence in  prosecuting  the  maker  will  discharge  the  indorser, 
if  it  does  so  by  the  law  of  his  place  of  indorsement.2  And 
the  place  of  contract  for  the  maker  of  the  note  often  differs 
from  that  for  the  indorser.3  Moreover,  the  lex  loci  con- 
tractus is  to  determine  whether  the  holder  of  a  bill  is  entitled 
to  protection  as  a  bona  fide  holder  against  equitable  defenses.4 
But  an  accommodation  indorsement  written  in  one  State  and 
delivered  in  another  is  governed  by  the  law  of  the  latter;3 
especially  if  written  with  the  intention  of  delivery  in  such 
other  State.6 

§  39.  Liability — Governed  by  Place  of  Payment. — The 
rights  and  liabilities  of  the  parties  are  to  be  controlled,  how- 
ever, as  we  have  seen,  by  the  place  of  performance,  when 
such  appears  to  have  been  their  intention.7  And  the  law  of 
the  place  where  a  bill  is  indorsed  and  made  payable  will 
control  that  of  the  place  where  it  is  drawn,  though  the  latter 
be  also  the  place  where  the  action  is  brought.8     In  like  man- 

*Storv  on  Prom.  Notes  §  171;  Story  on  Bills  \  147;  1  Daniel  855;  1 
Edwards  I  230;  Cook  v.  Litchfield,  9  N.  Y.  279  (1853);  S.  C,  5  Sandf.  330 
(1851) ;  Davis  v.  Clemson,  6  McLean  622,  624  (1855) ;  Williams  v.  Wade,  1 
Mete.  82  (1840);  Dow  v.  Howell,  12  N.  H.  49  (1841);  Dundas  v.  Bowler,  3 
McLean  397,  400  (1844) ;  Aymar  v.  Sheldon,  12  Wend.  439,  443  (1834) ;  Sla- 
cum  v.  Pomery,  6  Cranch  221  (1810) ;  First  National  Bank  of  Michigan  v. 
•Green,  33  Iowa  140  (1871) ;  Short  v.  Trabue,  4  Mete.  299  (Ky.  1863) ;  Trabue 
v.  Short,  18  La.  An.  257  (1866) ;  Trabue  v.  Short,  5  Coldw.  293  (1868) ;  Yeat- 
man  v.  Cnllen,  5  Black!'.  240  (1839) ;  Greathead  v.  Walton,  40  Conn.  226 
(1873) ;  Clanton  v.  Barnes,  50  Ala.  260  (1873) ;  Dunn  v.  Adams,  1  Ala.  527 
(1840);  Lennig  v.  Ralston,  23  Penna.  St.  137,  140  (1854).  And  the  lex  fori 
cannot  make  an  indorser  liable  as  such,  if  by  the  lex  loci  contractus  the  note 
is  mm-negotiable  and  the  assignor  not  liable  as  indorser,  Stix  v.  Matthews 
75  Mo.  96  (1881). 

-  Williams  v.  Wade,  1  Mete,  82  (1840) ;  Lee  v.  Selleck,  33  N.  Y.  615  affirm- 
ing 32  Barb.  522. 

3 Hatcher  v.  McMorine,  4  Dev.  122  (1833) ;  Greathead  v.  Walton,  40  Conn 
226  1 1873);  Lee  v.  Selleck,  33  N.  Y.  615  (1865);  Lowry  v.  Western  Bank 
7  Ala.  1-20(1844). 

WIWmi  v   Bratton,  47  Miss.  119,  129  (1872). 

bYoung  v.  Harris,  14  B.  Mon.  556  (1854). 

"Lee  v.  Selleck,  33  N.  Y.  615  (1865).  But  see  Lowry  v.  Western  Bank  7 
Ala.  120  (1844),  where  the  place  of  execution  was  held  to  govern  the  indorse- 
ment, although  the  note  was  payable  in  Georgia  and  made  and  indorsed  in 
Alabama  with  the  intention  to  negotiate  it  in  Georgia. 

THibernia  Nat.  Bank  v.  Lacombe,  84  X.  Y.  367  (1SS1) ;  Musson  v  Like  4 
How.  262  (1846).  ' 

■Brabston  v.  Gibson,  9  How.  263  (1850).     But  the  drawer's  right  to  notice 


38  WHAT    LAW    GOVERNS. 

ner,  the  drawer's  liability  for  damages  is  determined  by  the 
place  of  his  contract,  that  being  his  intended  place  of  pay- 
ment.1 So,  his  liability  for  interest,2  as  well  as  the  question 
whether  a  foreign  indorsement  is  sufficient  in  form  to  enable 
the  foreign  indorsee  to  maintain  an  action  against  him.3  So, 
his  right  to  a  demand  at  maturity  and  to  protest  and  notice 
of  dishonor.4 

The  contract  of  the  indorser  is  not  in  general  for  payment 
at  the  place  of  payment  designated  in  the  bill  or  note,  but 
for  payment  at  his  residence  or  at  the  place  of  his  contract, 
if  the  maker  or  acceptor  fails  to  pay  at  the  place  of  payment. 
The  liability  of  the  indorser  is  therefore  in  some  respects  de- 
termined by  the  law  of  the  place  of  indorsement  in  disregard 
of  the  place  of  payment  named  in  the  instrument.  This  has 
been  held  to  be  so  as  to  the  rate  of  damages  for  which  he  is 
liable;5  and  the  diligence  to  which  he  is  entitled  on  the 
holder's  part  in  prosecution  of  the  maker;6  as  well  as  his 
right  to  protest  and  notice  of  dishonor.7  A  more  reasonable 
rule  has,  however,  been  laid  down  in  England  to  the  effect 
that  the  necessity  for  notice  of  protest  in  behalf  of  a  remote 
indorsee  is  to  be  determined  by  the  lex  loci  solutionis  and  not 

of  protest  has  been  held  to  depend  on  the  law  of  the  place  of  his  contract, 
and  not  of  the  place  of  payment  named  in  the  bill,  Raymond  v.  Holmes,  11 
Tex.  54  (1853). 

'Hendricks  v.  Franklin,  4  Johns.  119  (1809). 

'Gibbs  v.  Fremont,  9  Exch.  25  (1853). 

3Everett  v.  Vendryes,  19  N.  Y.  436  (1859).  But  it  seems  that  between  the 
immediate  parties  to  such  indorsement  the  law  where  it  was  made  would 
determine  its  validity,  lb. 

*  Story  on  Bills  §  176. 

6  2  Kent  Com.  460;  Story  on  Confi.  Laws  g  314;  Slacum  v.  Pomerv,  6 
Cranch  221  (1S10) ;  Gravest  Dash,  12  Johns.  17  (1814).  But  see,  contra, 
Peck  v.  Mayo,  14  Vt.  33  (1842),  as  to  rate  of  interest. 

'Story  on  Conn.  Laws  §  3166  ;  Lee  v.  Selleck,  33  N.  Y,  615  (1S65),  affirming' 
32  Bark  522;  Short  v.  Trabue,  4  Mete,  299  (Kv.  1863);  Trabue  v.  Short,  5 
Coldw.  293  (1868) ;  Trabue  v.  Short,  18  La.  An.  257  (1866) ;  Hunt  v.  Standart, 
15  Ind.  38  (1860),  overruling  Shanklin  v.  Cooper,  8  Blackf.  41  (1846) ;  Bank 
of  Illinois  v.  Brady,  3  McLean  268.  And  not  the  place  of  making  the  note, 
Williams  v.  Wade,  1  Mete.  82;  or  of  the  forum,  Burrows  v.  Hannegan,  1 
McLean  315  (1838).  See,  too,  Holbrook  v.  Vibbard,  3  111.  465  (1840) ;  Cona- 
han  u.  Smith,  2  Disney  9  (1858). 

7 2  Parsons  343;  Story  on  Bills  \  285;  Story  on  Prom.  Notes  \  177;  1 
Edwards  \  383;  Avmar  v.  Sheldon,  12  Wend.  439  (1835) ;  Artisans'  Bank  v. 
Park  Bank,  41  Barb.  579  (1864) ;  Lowry  v.  Western  Bank,  7  Ala.  120  (1844). 


VALIDITY.  39 

by  the  law  of  the  place  of  indorsement  ;x  and  that  the  time  for 
giving  such  notice  may  be  extended  b}r  the  law  of  the  foreign 
place  of  payment  so  as  to  be  binding  on  the  English  indorser.2 

§  40.  Validity — What  Law  Governs. — The  validity  of  the 
contract  is  determined  by  the  lex  loci  contractus  ;3  and  the 
consideration  necessary  to  its  validity.4  If  the  consideration 
is  valid  where  the  instrument  is  executed,  it  is  valid  every- 
where.6 If  illegal  in  whole  or  in  part  there,  it  is  illegal 
everywhere;6  especially  where  it  is  made  and  payable  in  the 
same  place.7  And  even  where  the  consideration  was  the  sale 
of  lottery  tickets  in  a  place  where  it  was  against  the  law,  a 
note  given  for  that  consideration  in  a  State  where  the  sale 
would  have  been  valid,  has  been  held  to  be  itself  valid.8 

On  the  other  hand,  if  the  place  of  sale  whose  law  has  been 
violated  is  that  of  the  forum,  its  courts  will  not  enforce  such 
note;  as  in  the  case  of  a  note  given  in  Massachusetts  for 
liquor  sold  in  violation  of  law  in  New  Hampshire  and  sued 
on  in  New  Hampshire.9  But  the  Massachusetts  courts  have 
sustained  as  valid  by  New  York  law  an  executory  contract 
for  liquor  made  in  Massachusetts,  the  liquor  having  been 
actually  sold  and  delivered  in  New  York.10    Where  a  note  is 

'Home  r.  Rouquette,  L.  R.  3  Q.  B.  D.  514  (1S78). 

2  Rouquette  v.  Overman,  L.  R.  10  Q.  B.525  (1875). 

3  Woodruff  v.  Hill,  116  Mass.  310(1874):  Dolman  v.  Cook,  1  McCart.  56 
(1861);  Atwater  v  Walker,  1  C.  E.  Gr.  42;  S.  C,  2  McCart.  502  (1863); 
Armour  v.  McMichael,  7  Vr.  92  (1872);  Orv  v.  Winter,  4  Mart.  (n.  s.)  277 
(1826);  Green  v.  Sarmiento,  3  Wash.  0.  C.  17  (1811);  Western  R.  R.  Co.  v. 
Taylor,  6  Heisk.  4(>8  (1871).  So,  the  question  of  legality  under  a  statutory 
prohibition  of  hanking  powers,  Davidson  v.  Lanier,  4  Wall.  447  (1866). 

*  Hyde  v.  Goodnow,  3  N.  Y.  266  (1850);  Evans  v.  Anderson,  78  111.  558 
(1875  . 

Kant  v.  Miller,  17  Gratt.  47  (1866);  Andrews  v.  Herriot,  4  Cow.  510  ». 
(1825)  :  Pearaall  v.  Dwight,  2  Mass.  84,  88  (1806) ;  Kanaga  v.  Taylor,  7  Ohio 
Si.  [34  (1857)  ;  Frazier  v.  Fredericks,  4  Zab.  162  (1853);  Pugh  v.  Cameron's 
Adm'r,  11  W.  Va.  523  (1877);  Carnegie  v.  Morrison,  2  Mete!  381,  401  (1841). 

•Pecker  v.  Kennison,  46  N.  H.  4S8  (1866). 

7  Ivev  v.  Lalland,42  Miss.  444  (1869) ;  Collins  Iron  Co.  v.  Burkam,  10  Mich. 
283  (1862). 

8  Jameson  v.  Gregory,  4  Mote.  363  (Ky.  1S63). 

9  Fuller  !-.  Bean.  30  X.  H.  1S1  (1855). 

l0Abberger  v.  Marrin,  192  Mass.  70  (1869).  In  this  case  the  purchaser 
Bought  by  his  action  in  Massachusetts  to  recover  the  money  paid  by  him 
for  the  goods  purchased. 


40  WHAT    LAW    GOVERNS. 

given  for  a  sale  of  intoxicating  liquor,  the  law  of  New  Hamp- 
shire now  throws  the  burden  on  the  holder  of  proving  a 
license  for  the  sale,  but  this  law  will  not  be  applied  to  a  sale 
made  in  another  State.1  Nor  will  it  constitute  a  defense 
against  a  bona  fide  holder  that  the  note  was  given  in  another 
State  for  liquor  illegally  sold  there.2 

§  41.  Interest — Implied  Rate. — The  interest  payable  on  a 
contract,  if  not  designated,  is  to  be  computed  by  the  lex  loci 
contractus?  So,  an  authority  by  letter  written  in  New  York 
to  draw  a  bill  in  Louisiana  on  New  York  has  been  held  to 
imply  an  agreement  for  interest  at  the  rate  which  is  legal  in 
Louisiana.4  The  indorser  is  liable  in  like  manner  for  interest 
at  the  rate  which  is  legal  at  the  place  of  indorsement,5  and 
the  acceptor  for  that  of  the  place  of  acceptance,  not  that  of 
the  place  where  the  bill  was  drawn.6 

But  if  the  place  of  payment  is  expressed  and  the  rate  of 
interest  is  not  designated,  it  is  to  be  computed  at  the  rate 
which  obtains  where  it  is  payable.7     And  this  is  true  although 

^oolittle  v.  Lyman,  44  N.  H.  608  (1863). 

2Great  Falls  Bank  v.  Fannington,  41  N.  H.  32  (1860). 

sStorv  on  Prom.  Notes  \  166 ;  Byles  406  ;  2  Edwards  I  1009  ;  Story  on  Bills 
g  148;  Gibbs  v.  Fremont,  9  Exch.  31 ;  Jewell  v.  Wright,  30  N.  Y.  259  (1S64) ; 
Merchants'  Bank  v.  Griswold,  72  lb.  472  (1S78) ;  Sheldon  v.  Haxton,  24  Hun 
196  (1881) ;  Stickney  v.  Jordan,  58  Me.  106  (1870)  ;  Varick  v.  Crane,  3  Gr. 
Ch.  128  (1837) ;  Bowles  v.  Eddy,  33  Ark.  645  (1878) ;  Second  Nat.  Bank  v. 
Smoot,  2  MacArth.  371  (1876) ;  Hawley  v.  Sloo,  12  La.  An.  815  (1857).  So, 
too,  in  other  contracts,  Consequa  v.  Willings,  1  Pet.  C.  C.  225  (1816).  So,  a 
bond  given  in  England  for  a  debt  contracted  in  Ireland  draws  interest  at 
the  English  rate,  Rainelaugh  v.  Champante,  2  Verti.  394.  And  if  such  rate 
be  express,  though  higher  than  that  allowed  where  the  debt  was  contracted, 
the  bond  will  be  valid,  Connor  v.  Bellamont,  2  Atk.  381.  But  see,  contra. 
Sands  v.  Smith,  1  Neb.  108,  where  a  note  given  in  Nebraska  and  secured  by 
a  Nebraska  mortgage,  but  made  for  a  New  York  loan  and  payable  iir  New 
York,  was  held  to  be  governed  by  New  York  law  and  to  be  void  for  usury. 

*Lanusse  v.  Barker,  3  Wheat.  101  (1818). 

5 Mullen  v.  Morris,  2  Penna.  St.  85,  87  (1845),  the  note  being  in  this  case 
payable  at  the  same  place. 

6Bv!es  406  ;  Cooper  v.  Earl  of  Waldegrave,  2  Beav.  282  :  Allen  v.  Kemble, 
6  Moo.  P.  C.  314;  Abel  v.  McMurray,  10  Tex.  350  (1S53).  Frierson  v.  Gal- 
brath,  12  B.  J.  Lea  129  (1883),  the  place  of  the  acceptor's  residence  being 
held  in  this  case  to  be  the  place  of  payment.  But  see,  contra,  Raymond  v. 
Holmes,  11  Tex.  54  (1S53)  ;  Bailey  v.  Heald,  17  lb.  102  (1856). 

7Story  on  Prom.  Notes  \  166;  Storv  on  Conn*,  of  Laws  \  292;  2  Edwards  \ 
1009;  2  Parsons  377;  Storv  on  Bills'  \  148;  Cooper  v.  Waldegrave,  2  Beav. 
282;  Jewell  v.  Wright,  30  N.  Y.  259  (1864) ;  Dickinson  v.  Edwards.  77  lb.  573 
(1879) ;  Campbell  v.  Nichols,  14  Vr.  81  (1868) ;  Freese  v.  Brownell,  6  lb.  285 


DAMAGES.  41 

tlie  note  be  negotiated  elsewhere.1  So,  if  a  note  is  made  in 
one  State  and  intended  to  be  paid  in  another,  the  latter  fixes 
the  rate  of  interest  if  not  expressed.2  But  the  interest  after 
maturity  will  be  computed  at  the  rate  fixed  by  the  lex  fori, 
not  by  that  of  the  place  of  payment.3 

In  computing  interest  the  foreign  rate  will  be  presumed  to 
be  the  same  as  that  of  the  forum.4  But  if  the  contract 
would  be  usurious  by  the  law  of  the  forum,  this  will  not  be 
presumed  to  be  the  law  of  the  place  of  contract.5 

§  42.  Damages — Exchange — Currency. — The  same  law  of 
place  which  determines  what  interest  is  to  be  paid,  settles 
also  the  rule  of  dairrages  for  non-payment,6  as  well  as  the 

(1871) ;  Agricultural  Nat.  Bank  v.  Sheffield,  4  Hun  421  (1875)  ;  Hawley  t;. 
Sloo,  12  La.  An.  815;  Howard  v.  Branner,  23  La.  An.  369  (1871) ;  Arnold  v. 
Potter,  22  Iowa  194  (1867)  ;  Newman  v.  Kershaw.  10  Wis.  333  (I860).  But 
a  note  made  in  Illinois  in  payment  of  a  New  York  debt  and  payable  in 
New  York,  although  bearing  a  rate  of  interest  valid  in  Illinois  and  usurious 
in  New  York,  has  been  held  valid  in  New  York,  Sheldon  v.  Haxton,  24 
Hun  196  (1881);  affirmed  91  N  Y.  12  (1883).  So,  too,  the  place  of 
payment  will  control  a  bill  drawn  elsewhere,  but  made  payable  in  such 
State  for  the  purpose  of  getting  the  higher  rate  of  interest  of  that  place. 
Smith  v.  Muncie  Nat.  Bank,  29  Ind.  158  (1867).  But  a  contract  by  letter 
written  in  England  for  services  to  be  performed  in  Scotland  would  not  come 
within  this  rule,  Arnott  v.  Redfern,  2  C.  &  P.  88.  See,  however,  Isaacs  v. 
McAndrews,  1  Mont.  437  (1872). 

Jewell  v.  Wright,  30  N.  Y.  259  (1864)  ;  Dickinson  v.  Edwards,  77  lb.  573 
(1879) ;  Hackettstown  Bank  v.  Rea,  6  Lans.  455  (1872) ;  S.  C,  64  Barb.  175  : 
affirmed  53  N.  Y  618  (1873) ;  Clayes  v.  Hooker,  4  Hun  231 ;  Bank  of  Illinois 
v.  Brady,  3  McLean  268.  But  see,  contra,  First  Nat.  Bank  v.  Morris,  1  Hun 
680  (1S74),  where  an  accommodation  acceptance  in  New  York,  discounted 
in  Massachusetts,  was  held  to  be  governed  by  the  law  of  the  latter  State. 
And  see  Opdyke  v.  Merwin,  13  Hun  401  (1878). 

'Austin  v.  Innes,  23  Vt.  286  (1861). 

3 Ives  v.  Farmers'  Bank,  2  Allen  236  (1861);  Ayer  v.  Tilden,  15  Gray  178 
(1860). 

4 Cooper  v.  Reaney,  4  Minn.  52S  (1860) ;  Longee  v.  Washburn,  16  N.  H.  134 
(1844) ;  Hawley  v.  Sloo,  12  La.  An.  815.  But  in  Sweet  v.  Dodge,  4  Sm.  &  M. 
667  (1845),  it  was  held  that  no  interest  could  be  recovered  without  proof  of 
the  foreign  rate.     See,  too,  Martin  v.  Martin,  1  lb.  176. 

"Martin  v.  Martin,  1  Sm.  &  M.  176  (1S43);  Engler  v.  Ellis,  16  Ind.  475 
(1861);  Pugh  v.  Cameron,  11  W.  Va.  523  (1877);  White  v.  Friedlander,  35 
Ark.  52  (1879).  Sunday  laws,  however,  avoiding  a  contract  where  the  ac- 
tion is  brought,  have  been  presumed  to  be  the  law  of  the  place  of  contract 
also,  Brimhall  v.  Van  Cam  pen,  8  Minn.  13  (1S62)  ;  Savre  v.  Wheeler,  31  Iowa 
112  (1870) ;  Hill  v.  Wilker,  41  Ga.  449  (1871).  But  see,  contra,  O'Rourke  v. 
O'Rourke,  43  Mich.  58  (1880). 

6  Wharton  on  Confl.  of  Laws  \  512:  Story  on  Confl.  of  Laws  §307:  Courtoia 
as.  Carpentier,  1  Wash.  C.  C  376  (1806) ;  Slacum  v.  Pomerv,  6  Cranch  221 
(1810) ;  Hazelhurst  v.  Kcan.  4  Yeatea  19(1803);  Bank  of  United  States  v. 
United  States,  2  How.  711  ( 1^44).     And  an   indorsee's  rights   will    not    be 


42  WHAT    LAW    GOVERNS. 

rate  of  exchange,1  the  exchange  between  place  of  payment 
and  place  of  suit  being  taken  into  account.2  And  if  the 
currency  of  the  place  of  payment  has  depreciated  since  the 
contract  was  made,  the  holder  may  recover  damages  equiva- 
lent to  its  original  value  at  the  time  of  contracting.3 

§  43.  Usury — Election  Between  Different  Rates. — In  deter- 
mining whether  a  bill  or  note  is  usurious,  the  courts  have 
leaned  noticeably  to  decisions  sustaining  the  instrument,  if 
valid  by  the  law  of  any  place,  whether  of  contract  or  of  pay- 
ment, and  this  somewhat  in  disregard  of  any  general  rule. 
If  a  different  rate  of  interest  is  fixed  by  law  in  the  place 
of  contract  and  of  payment,  the  parties  may  elect  either  rate 
to  govern  their  contract.4  Thus,  they  may  choose  the  rate 
of  the  place  of  payment,  that  being  the  higher;5  or  the 
rate  of  the  place  of  contract,  if  that  is  the  higher.6     So, 

affected  by  tbe  laws  of  tbe  original  place  of  contract  (a  different  place  from 
that  of  indorsement)  authorizing  payment  in  bank  bills,  Dundas  v.  Bowler, 
3  McLean  397  (1844). 

xLee  v.  Wilcocks,  5  Serg.  &  R.  48  (1819) ;  Smith  v.  Shaw,  2  Wash.  C.  C.  167 
(1808) ;  Marburg  v.  Marburg,  26  Md.  9,  20  (1866) ;  Grant  v.  Healey,  3  Sumn. 
C.  C.  523  (1839) ;  Cash  v.  Reunion,  11  Ves.  314.  And  see  English  Bills  of 
Exch.  Act,  1882,  g  72. 

•Scott  v.  Bevan,  2  B.  &  Ad.  78;  Delegal  v.  Naylor,  7  Bing.  460;  Ekin3 
v.  East  India  Co.,  1  P.  Wms.  395 ;  Cockerill  v.  Barber,  16  Ves.  461. 

3  Warder  v.  Arell,  2  Wash.  (Va.)  282. 

4 Arnold  v.  Potter,  22  Iowa  194  (1867) ;  Newman  v.  Kershaw,  10  Wis.  333 
(1860);  Smith  v.  Muncie  Nat.  Bank,  29  Ind.  158  (1867);  Fitch  v.  Remer,  8 
Am.  Law  Reg.  654  (1860).  In  like  manner  a  renewal  note  dated  and  pay- 
able in  Illinois  at  a  rate  of  interest  valid  there  but  usurious  in  New  York 
whither  it  was  sent  by  mail  and  where  the  original  loan  was  made  and  the 
original  note  given  payable  in  Illinois,  has  been  enforced  in  the  courts  of 
New  York  as  valid  there,  Sheldon  v.  Haxtun,  91  N.  Y.  124  (1883). 

6Sharp  v.  Davis,  7  Baxter  607  (1874).  And  where  no  place  of  payment 
was  named  but  the  payee  was  a  citizen  of  another  State  and  the  interest 
stipulated  for  was  at  the  rate  allowed  there,  it  was  held  that  this  was  a.  con- 
tract payable  there  and  valid,  although  it  would  have  been  usurious  where 
made,  Brown  v.  Gardner,  4  B.  J.  Lea  145  (1879).  So,  too,  Scott  v.  Perlee,  39 
Ohio  St.  63  (1883). 

6Richards  v.  Globe  Bank,  12  Wis.  692  (1860);  Chapman  v.  Robertson,  6 
Paige  627  (1837) ;  Pratt  v.  Adams,  7  Paige  615  (1839) ;  Pecks  v.  Mayo,  14  Vt. 
33  (1842) ;  Fisher  v.  Otis,  3  Chand.  83  (1850) ;  Atwater  v.  Roelofson,  4  Am. 
Law  Reg.  549  (1855) ;  Vliet  v.  Camp,  13  Wis.  198  (1860)  ;  2  Kent  460  ;  Depau 
v.  Humphreys,  S  Mart.  (n.  s.)  1  (1829);  Balme  v  Wombough,  38  Bail). 
352  (1862) ;  Bank  of  Georgia  v.  Lewin,  45  lb.  340  (1865).  But  to  the  effect 
that  the  rate  agreed  on  must  not  exceed  that  of  the  place  of  payment,  see 
Andrews  v.  Pond,  13  Pet.  77 ;  Thompson  v.  Ketchani,  4  Johns.  285;  Rohb  v.- 
Halsey,  11  Sm.  &  M.  146. 


USURY.  43 

where  the  rate  of  interest  differs  in  the  place  of  contract  and 
the  residence  of  the  parties,  they  may  elect  the  higher  rate;1 
unless  such  choice  is  a  mere  cover  for  usury.2 

§  44.  Usury — Place  of  Contract. — In  the  absence  of  an 
election,  as  a  general  rule,  the  lex  loci  contractus  governs  the 
question  of  usury ;  and  in  general,  in  determining  whether 
a  note  is  usurious  the  actual  place  of  the  contract  is  to  be 
considered  rather  than  the  place  where  the  papers  were 
drawn  or  delivered.  Thus,  a  note  made  in  the  District  of 
Columbia  in  payment  of  a  Pennsylvania  note  at  a  rate  valid 
in  Pennsylvania  but  usurious  in  the  District  of  Columbia, 
has  been  held  to  be  governed  by  Pennsylvania  law  and  sus- 
tained as  valid.3  So,  too,  a  note  payable  in  Alabama  for  a 
New  York  loan  at  a  rate  of  interest  usurious  in  New  York, 
has  been  held  to  be  governed  by  New  York  law  and  to  be 
void  for  usury.4  So,  an  accommodation  note  made,  dated 
and  signed  in  Texas,  but  actually  discounted  and  payable  in 
New  York,  will  be  usurious  if  made  so  by  New  York  law.5 
And  where  an  accommodation  acceptance  is  given  payable  in 
Boston,  but  discounted  in  New  York  at  a  usurious  rate,  and 
void  by  New  York  law  for  usury,  the  acceptor  will  not  be  liable 
to  a  holder  under  a  New  York  indorsement,  though  he  holds 
security  for  his  acceptance.6  If  a  note  is  made  and  signed 
in  one  State,  but  dated  and  discounted  in  another,  the  latter 
determines  the  question  of  usury.7     If  dated  and  signed  by 

'Story  on  Bills  \  148;  Story  on  Prom.  Notes  |  166:  2  Edwards  \  1011; 
Wharton  Confl.  L.  \  510;  2  Parsons  376,  378;  Richards  v.  Globe  Bank.  12 
Wis.  602  (1860) ;  Vliet  v.  Camp,  13  lb.  19S  (1860) ;  Depau  v.  Humphreys,  10 
Mart.  1  (1829);  Balme  v.  Wombough,  3S  Barb.  352  (1862).  But  where  a, 
loan  is  made  in  New  York  and  a  note  for  a  usurious  amount  there  given,  it 
will  not  be  valid,  though  payable  in  Alabama  and  valid  by  Alabama  law, 
Hanrick  v.  Andrews,  9  Port.  9  (1839J. 

2 2  Parsons  377. 

8  Rhawm  v.  Grant,  1  MacArth.  31  (1873).  So,  Wallis  v.  Lehman,  36  Ark. 
569  (1880). 

4Hanrick  v.  Andrews,  9  Port  9  (1S39). 

5Conner  v.  Donnell,  55  Tex.  167  (1881). 

6Akers  v.  Demond,  103  Mass.  ;;1S  (1869). 

'Second  Nat.  Bank  v.  Smoot,  2  MacArth.  371  (1876).  So,  too,  irrespective 
of  the  date,  Davis  v.  Clemson,  6  McLean  t'>22  (1855).  And  a  note  executed, 
dated  and  payable  in  New  York,  and  mailed  by  the  maker  to  Pennsylvania 


44  WHAT    LAW    GOVERNS. 

one  makpr  in  Missouri  and  signed  by  another  and  delivered 
in  Iowa,  the  Iowa  usury  law  will  govern  it.1  But  if  made 
and  dated  in  Georgia  and  given  in  settlement  of  a  Georgia 
contract,  it  will  be  governed  by  Georgia  law,  though  signed 
by  one  maker  in  North  Carolina.2  If  made  in  South  Caro- 
lina at  the  rate  which  is  lawful  there,  to  be  signed,  and  sub- 
sequently signed,  by  a  surety  in  North  Carolina,  he  will  be 
liable  for  that  rate,  though  higher  than  that  of  North  Caro- 
lina.3 

If  it  is  valid  where  it  bears  date,  it  cannot  be  defeated  by 
evidence  that  the  money  for  which  it  was  given  was  really 
loaned  in  another  State,  where  the  stipulated  rate  of  interest 
would  be  illegal  ;4  so  far  at  least  as  to  affect  a  bona  fide  pur- 
chaser for  value  before  maturity.6 

§  45.  Usury — Situs  of  Landed  Security. — The  fact  that  a 
note  or  bill  is  secured  by  a  mortgage  of  lands  lying  in 
another  State  will  not  take  it  out  of  the  operation  of  the  lex 
loci  contractus,  as  we  have  already  seen.6  But  if  the  law  of 
the  place  of  contract  would  render  the  instrument  void  for 
usury,  it  may  still  be  sustained  if  valid  by  the  law  of  the 

to  renew  his  note  held  there  by  a  Pennsylvania  corporation,  may  be  law- 
fully discounted  by  such  corporation  at  a  Pennsylvania  rate  which  would 
be  usurious  in  New  York,  Wayne  Co.  Sav.  Bank  v.  Low,  81  N.  Y.  566  (1880). 
But  the  mere  fact  that  a  note  was  given  for  a  debt  due  to  a  citizen  of  another 
State,  will  not  render  it  valid,  if  made,  delivered  and  payable  in  New  York 
and  void  by  the  usury  laws  of  New  York,  Merchants'  Bank  v.  Southwick,  19 
Cent.  L.  J.  316  (N.  Y.  Sup.  Ct.  1884). 

lHart  v.  Wills,  52  Iowa  56  (1879).  But  a  note  given  in  consideration  of  a 
Florida  contract  dated  in  Florida  and  drawn  at  a  rate  of  interest  valid  in 
that  State  but  usurious  in  New  York,  will  not  be  held  void  by  reason  of  its 
delivery  in  New  York,  Berrien  v.  Wright,  26  Barb.  208  (1857)" 

2Findlay  v.  Hall,  12  Ohio  St.  610  (1861);  Davis  v.  Coleman,  7  Ired.  424 
(1S47). 

"Houston  v.  Potts,  64  N.  C.  33  (1870). 

4 Potter  v.  Tallman,  35  Barb.  182  (1861). 

5Towne  v.  Rice,  122  Mass.  67  (1877). 

6DeWolf  v.  Johnson,  10  Wheat.  867  (1825);  Chase  v.  Dow,  47  N.  H.  405 
(1867);  Andrews  v.  Torrey,  1  McCart.  355  (1862);  Dolman  v.  Cook.  lb.  58 
(1861);  Mix  v.  Madison  Ins.  Co.,  11  Ind.  117.(1858).  Although  void  for 
usury  by  the  law  of  the  place  of  contract  and  valid  by  the  lex  rei  aitse,  Sands 
v.  Smith,  1  Neb.  108.  But  if  the  note  is  made  payable  in  the  same  State 
where  the  security  lies,  the  law  of  that  State  will  regulate  the  rate  of  inter- 
est, Little  v.  Riley,  42  N.  H.  109  (1861). 


USURY.  45- 

place  where  the  land  lies.1     So,  a  fortiori,  if  the  note  is  pay- 
able in  the  place  where  the  lands  lie.2 

§  46.  Usury — Place  of  Payment. — On  the  other  hand,  it 
may  be  sustained  as  valid  by  the  lex  loci  solutionis,  though 
usurious  by  the  law  of  the  maker's  residence  and  of  the  place 
where  the  lands  lie.3  So,  the  lex  loci  solutionis  will  prevail 
against  the  lex  fori  to  sustain  a  note  usurious  by  the  law  of 
the  latter  place.4  And  a  note  dated  and  payable  in  New 
York  and  discounted  in  New  Jersey  at  a  rate  usurious  there 
but  valid  in  New  York,  is  governed  by  New  York  law  and 
is  valid.5  We  have  seen,  however,  that  a  bill  given  in  New 
York  for  a  New  York  loan  and  usurious  there  will  not  be 
sustained  against  the  acceptor  in  Massachusetts,  though  ac- 
cepted and  payable  in  Massachusetts  and  valid  there.6  So, 
a.  note  made  and  discounted  in  Pennsylvania  under  a  Penn- 
sylvania contract,  but  dated,  indorsed  and  payable  in  New 
York,  will  be  sustained  as  valid  by  the  Pennsylvania  law, 
though  it  would  have  been  usurious  by  New  York  law.7 

'Stapleton  v.  Conway,  3  Atk.727;  S.  C,  1  Ves.  427;  Chapman  v.  Robert- 
son, 6  Paige  627  (1837).  And  this  has  been  held  to  be  the  case  without 
regard  to  the  domicil  of  the  parties,  Arnold  v.  Potter,  22  Iowa  194  (1867) ; 
Newman  v.  Kershaw,  10  Wis.  333  (1860). 

2 Little  v.  Riley,  43  N.  H.  109  (1861). 

3Goodrich  v.  Williams,  50  Ga.  425  (1873).  So,  if  valid  by  the  law  of  the 
maker's  residence  and  where  the  land  lies,  but  usurious  by  the  law  of  the 
place  of  payment,  Thompson  v.  Edwards,  85  Ind.  414  (1882). 

4  Lines  v.  Mack,  19  Ind.  223  (1862). 

5Hackettstown  Bank  v.  Rea,  64  Barb.  175  (1S72);  affirmed  53  N.  Y.  618 
(1873).  So,  the  law  of  the  place  of  payment  has  been  held  to  govern 
and  render  void  for  usury  the  following  instruments :  A  note  drawn  and 
payable  in  New  York  and  discounted  in  Connecticut  at  a  rate  usurious 
in  both  States,  Jewell  v.  Wright,  30  N.  Y.  259  (1864);  a  bill  accepted 
and  payable  in  New  York,  discounted  in  Massachusetts  at  a  rate  usu- 
rious by  New  York  law,  Hildreth  v.  Shepard,  65  Barb.  265  (1873);  an 
accommodation  note  dated  and  payable  in  New  York,  negotiated  by  the 
payee  in  Massachusetts  at  a  rate  usurious  by  New  York  law,  Dickinson  v. 
Edwards,  77  N.  Y.  573  (1879),  affirming  13  'Hun  405,  and  distinguishing 
Tilden  r.  Blair,  21  Wall.  241,  where  the  original  intention  Avas  to  negotiate 
the  note  in  another  State  ;  a  note  dated,  delivered  and  payable  in  New  York 
and  in  renewal  of  a  New  York  contract,  but  delivered  at  the  payee's  domicil 
in  Connecticut,  Jacks  v.  Nichols,  5  N.  Y.  17S  (1851),  affirming  3  Sandf.  Ch. 
313. 

6Akers  v.  Demond,  103  Mass.  31S  (1869).  So,  too,  Tilden  v.  Blair,  21  Wall. 
241  (1874). 

7  Wayne  Co.  Sav.  Bank  t\  Low,  81  X.  Y.  .V>t">  I1SS0). 


46  WHAT    LAW    GOVERNS. 

As  to  usury  an  acceptance  is  governed  in  general  by  the 
law  of  the  place  of  payment,  or,  if  accepted  generally,  by 
that  of  the  acceptor's  residence.1  If  a  note  is  dated  at  the 
maker's  residence  and  valid  there,  it  will  be  presumed  to  be 
payable  there,  and  therefore  valid,  though  it  would  be 
usurious  where  it  was  actually  made.2 

§  47.  Negotiability — What  Law  Governs. — The  negotia- 
bility of  commercial  .paper  is  to  be  determined  in  general, 
not  by  the  lex  fori,  but  by  the  lex  loci  contractus,3  or  the  lex 
loci  solutionis.*  If  it  is  negotiable  by  the  lex  mercatoria,  it 
is  so  prima  facie  by  the  law  of  the  place  of  contract.5 

But  where  there  is  a  conflict  as  to  the  negotiability  of  the 
instrument  between  the  place  of  making  and  that  of  payment 
and  the  law  of  the  forum  corresponds  with  that  of  either 
place,  its  courts  have  enforced  that  law.6  So,  if  the  law  of 
the  place  of  indorsement  is  in  conflict  with  that  of  the  place 
where  the  note  was  made  or  the  bill  drawn,  and  the  law  of 
the  forum  agrees  with  either, its  courts  have  enforced  that  law.7 
And,  a  fortiori,  where  the  lex  fori  agrees  with  the  law  both  of 
the  place  of  making  and  of  payment,  it  will  control  the  law  of 
the  place  of  indorsement  as  to  the  negotiability  of  the  paper.8 

Hoffman  v.  Bank  of  Kentucky,  41  Miss.  212  (1866). 

2Bullard  v.  Thompson,  35  Tex.  313  (1872). 

3E!derkin  v.  Elderkin,  1  Root  139  (1789) ;  Bowneu.  Olcott,  2  76.  353;  Goffe 
v.  Billinghurst,  lb.  527.  So,  in  Stix  v.  Mathews,  75  Mo.  96  (1881),  an  indorser 
was  held  discharged  in  the  forum  for  want  of  the  note  being  made  payable 
at  a  bank  in  Indiana  (the  locus  contractus)  as  required  by  the  law  of  that 
State. 

*Stix  v.  Mathews,  63  Mo.  371  (1876);  State  v.  Cobb,  64  Ala.  127  (1879). 
And  as  to  a  bill  payable  in  Massachusetts,  this  will  be  presumed  to  be  the 
common  law,  lb. 

5Tyrrell  v.  Cairo,  &c,  R.  R.,  7  Mo.  App.  294  (1879). 

eLex  loci  contractus  and  lex  fori  controlling  lex  loci  solutionis  in  Howenstein 
v.  Barnes,  9  Cent.  L.  J.  48  (Kans.  Sup.  Ct.  1879).  Lex  loci  solutionis  and  lex 
fori  controlling  lex  loci  contractus  in  Freeman's  Bank  v.  Ruckman,  16  Gratt. 
126  (1860). 

1Lex  loci  contractus  and  lex  fori  controlling  the  law  of  the  place  of  indorse- 
ment in  Roosa  v.  Crist,  17  111.  450  (1856),  as  to  negotiability  by  delivery;  and 
in  Reddick  v.  Jones,  6  Ired.  107  (1S45),  as  to  negotiability  in  general.  So, 
Story  on  Prom.  Notes  §  173 ;  Story  on  Confl.  Laws  g  346.  But  see,  contra, 
Clanton  v.  Barnes,  50  Ala.  260  (1873),  as  to  transfer  by  a  married  woman. 
Lex  loci  contractus  controlled  by  the  law  of  the  place  of  indorsement  and  of 
the  forum  in  Grace  v.  Hannah,  6  Jones  94  (1858).     So,  2  Parsons  353. 

President,  &c,  v.  Minor,  9  Sm.  &  M.  544  (1848). 


TRANSFER.  47 

If  the  indorsement  is  in  accordance  with  the  law  of  the  place 
of  contract  and  of  payment,  although  not  valid  by  the  law 
of  the  place  of  transfer,  the  acceptor  will  be  liable  where 
the  bill  was  made,  as  in  the  case  of  a  blank  indorsement  in 
France  of  an  English  accepted  bill.1 

It  is  to  be  remembered,  however,  that  the  indorsement  of 
a  bill  is  a  separate  contract  from  the  drawing  and  to  be  gov- 
erned as  other  contracts  are,  by  the  law  of  the  place  where  it 
is  made.2  And  this  principle  applies  to  each  separate  in- 
dorsement and  each  may  have  a  distinct  locus  contractus? 

§  48.  Transfer — Form — Governed  by  what  Law. — The  form 
of  an  indorsement  is  governed  by  the  law  of  the  original 
place  of  contract  if  that  is  also  the  forum,  as  in  the  case  of 
a  Bank  of  England  note  transferred  by  delivery  in  France, 
where  such  transfer  is  insufficient  and  afterward  sued  on  in 
England.4  If  the  transfer  is  void  both  by  the  law  of  the 
place  where  the  instrument  was  made  and  by  that  of  the 
place  where  it  was  transferred,  it  will  be  void  everywhere.5 
On  the  other  hand,  there  may  be  a  valid  transfer  of  an  in- 

JLebel  v.  Tucker,  L.  R.  3  Q.  B.  77  (1867) ;  Bradlaugh  v.  DeRin,  L.  R.  5  C. 
P.  473  (1870),  reversing  L.  R  3  C.  P.  538  (1S68).  But,  quxre,  as  to  the  in- 
dorsees liability  in  such  case,  Lebel  v.  Tucker,  supra.  And  see  Trimby  v. 
Vignier,  1  Bins*.  X.  C.  151 ;  S.  C,  6  C.  &  P.  25;  4  M.  &  S.  695;  Everett  v. 
Vendryes,  19  N.  Y.  436  (1859).  But  one  who  draws  a  bill  in  a  foreign 
country  upon  a  New  York  corporation  is  liable  in  New  York  to  one  hold- 
ing the  bill  under  a  blank  indorsement  made  in  such  foreign  country, 
although  a  blank  indorsement  is  not  sufficient  to  transfer  title  by  the  law 
of  such  country,  Everett  v.  Vendryes,  supra. 

2l  Edwards  \  3S3 ;  Mnsson  v.  Lake,  4  How.  262  (1846);  Slacurn  v.  Pomery, 
6  Crunch  221  (1810);  Dundas  v.  Bowler,  3  McLean  397  (1844);  Towne  v. 
Smith,  1  Woodb.  &  M.  115  1 1845)  ;  Cook  v.  Litchfield,  9  N.  Y.  279  (1853)  ;  S. 
C,  5  Sandf.  330;  Lennig  v.  Ralston,  23  Penna.  St  137  (1854);  Trahue  v. 
Short,  18  La.  An.  257  ( 1866);  Dow  v.  Russell,  12  N.  H.  49  (1841) ;  Williams 
v.  Wade,  1  Mete. 82 (1840)  ;  Greathead  v.  Walton,  40 Conn.  226(1873)  ;  Hunt 
v.  Standart,  15  Ind.  33  I  I860) ;  Hyatt  v.  Bank  of  Kentucky,  8  Bush  193  (1871) ; 
Huse  r.  Hamblin,  29  Iowa  5U1  (1870);  First  Nat.  Bank  of  Michigan  v. 
Green,  33  Iowa  140(1871);  Rose  v.  Park  Bank,  20  Ind.  94  (1863) ;  Short  v. 
Trabue,  4  Mete.  2  19  I  Ky.  1863)  ;  Hatcher  v.  McMorine,  4  Dev.  122  (1833); 
Bernard  v.  Barry,  1  Gr.  388  (Iowa  1848);  Burrows  v.  Hannegan,  1  McLean 
315;  McClintick  v.  Cummins,  •">  Il>.  158. 

3  Rose  v.  Park  Bank,  20  Ind.  94  (1863);  Carlisle  v.  Chambers,  4  Bush  268 
(186S). 

4De  la  Chaumette  r.  Bank  of  England,  2  B.  &  Ad.  385;  S.  C,  9  B.  &  C. 
20S,  quxre. 
5  2  Parsons  356. 


48  WHAT    LAW    GOVERNS. 

strutnent  which  was  illegal  in  the  original  place  of  contract 
because  made  between  alien  enemies.1  If  a  note  or  bill  is 
payable  generally,  and  made  to  be  negotiated  in  another 
State,  the  place  of  indorsement  will  govern  the  transfer.2 
So,  the  place  of  indorsement  will  control,  although  the  note 
is  expressly  payable  where  it  is  made.3  In  like  manner  a 
general  assignment  for  the  benefit  of  creditors  will  be  good, 
if  valid  where  made,  and  not  contrary  to  the  local  law  and 
policy  of  the  forum,  it  having  been  made  in  the  place  of  the 
assignor's  residence.4 

§  49.  Transfer  by  Executor — Suit  by  Assignee. — If  by  the 
law  of  the  place  of  transfer  a  personal  representative  of  a 
deceased  holder  can  transfer  an  instrument  so  as  to  enable 
his  transferee  to  bring  suit,  the  transfer  will  carry  the  power 
of  suit  everywhere.5  So,  it  has  been  held  that  a  foreigu  ad- 
ministrator holding  a  note  payable  to  and  indorsed  by  his 
intestate  may  sue  on  it  subject  to  defenses  existing  against 
his  intestate.6  And  even  where  the  law  of  the  place  of 
transfer  does  not  allow  the  assignee  to  sue  in  his  own  name, 
he  may  generally  do  so,  if  permitted  by  the  lex  fori.1  But 
it  seems  that  he  could  not  sue  in  his  own  name  by  force  of 

'Morrison  v.  Lovell,  4  W   Va.  346  (1870). 

2Braynard  v.  Marshall,  8  Pick.  194  (1829). 

3Carlisle  v.  Chambers,  4  Bush  268  (1868);  Short  v.  Trabue,  4  Mete.  299 
(Ky.  1863) ;  Trabue  v.  Short,  18  La.  An.  257  (1866) ;  Hyatt  v.  Bank  of  Ken- 
tucky, S  Bush  193  (1871)  ;  Rose  v.  Park  Bank,  20  Ind.  94  (1863).  So,  of  a 
bill  payable  generally  but  drawn  on  a  person  resident  in  another  place  from 
that  of  its  transfer,  Powers  v.  Lvnch,  3  Mass.  77  (1807).  But  see  Van  Zant 
v.  Arnold,  31  Ga.  210  (1860). 

4Frazier  v.  Fredericks,  4  Zab.  162  (1853).  So,  an  assignment  by  act  of  law 
to  the  receiver  of  an  insolvent  corporation  carries  a  note  actually  held  and 
payable  in  the  State  where  the  receiver  was  appointed  as  against  a  subse- 
quent attachment  in  the  State  where  the  maker  resided,  Osgood  v.  Maguire, 
61  N.  Y.  524  (1S75).  But  a  foreign  assignment  has  been  held  ineffectual 
against  an  attachment  of  a  debt  payable  in  the  place  of  the  forum  and 
attached  there,  Goodsell  v.  Benson,  13  R.  I.  225  (1SS1) ;  Lewis  v.  Bush,  30 
Minn.  244  (1883). 

"I  Daniel  843;  Harper  v.  Butler,  2  Pet.  239  (1829);  Andrews  v.  Carr,  26 
Miss.  577  (1853) ;  Grace  v.  Hannah,  6  Jones  94  ( 1S58) ;  Leake  v.  Gilchrist,  2 
Dev.  73  (1829).  But,  contra,  Thompson  v.  Wilson,  2  V.  H.  291  (1820); 
Stearns  v.  Burnham,  5  Me.  261  (1828). 

6 Barrett  v.  Barrett,  8  Me.  353  (1832). 

7  Foss  v.  Nutting,  14  Gray  4S4  (1860).  Especially  if  the  place  of  forum  is 
also  the  place  where  the  contract  was  made,  Lodge  v.  i?helps,  1  Johns.  Cas. 
139  ;  S.  C,  2  Cai.  321. 


GRACE.  49 

the  law  of  the  place  of  transfer  if  not  permitted  so  to  sue  by 
the  law  of  the  forum.1 

§  50.  Bona  Fide  Holder — Admissibility  of  Defenses. — Again, 
the  lex  loci  contractus,  and  not  the  lex  fori,  determines  whether 
a  bona  fide  holder  before  maturity  should  be  subject  to  a 
defense  available  against  a  prior  holder.2     The  law  of  the 
jjlace  of  transfer  will  not  in  general  affect  the  maker's  1  in- 
ability -j©r  his  right  to  set  up  equitable  defenses.3     But  an 
^accommodation  acceptor  will  be  governed  by  the  law  of  the 
/■pla^e  where  the  bill  is  first  negotiated,  that  being  in  reality 
.th^ place  of  the  original  contract.4 
r*V^    ^51,  Grace — What  Law  Governs. — The  law  of  the  place 
-  of  contract  determines  what   grace,  if  any,  is  to  be  allowed, 
^wfereSa   note   is   payable   generally  and  therefore,  prima 
^Jacie,^Lt  the  place  where  it  was  made.5     But  if  a  bill  or 
note  is  payable  at  a  designated  place,  the  law  of  that  place 
will  determine  whether  it  is  entitled  to  grace;6  and  what  this 
law  is  need  not  be  known  to  the  parties  at  the  time.7 

§  52.  Demand — Protest — What  Law  Governs. — The  pre- 
sentment of  a  note  or  bill  is  governed  by  the  lex  loci 
solutionis?     And  whether  it  can  be  made  by  a  notary's  clerk 

'Fisk  v.  Brackett,  32  Vt.  79S  (1800).  But  see,  contra,  as  to  a  non-nego- 
tiable note,  Owen  v.  Moody,  29  Miss.  79  (1855). 

'Harrison  v.  Edwards,  12  Vt.  648  (1S40). 

3Brabston  v.  Gibson,  9  How.  263  (1S50) ;  Wilson  v.  Lazier,  11  Gratt.  477 
(1854);  Stacy  v.  Baker,  2  111.  417  (1837);  Yeatman  v.  Cullen,  5  Blackf.  241 
(1839). 

*Gallaudet  v.  Sykes,  1  MacArth.  489  (1874). 

5 Burnham  v.  Webster,  19  Me.  232(1841).  Although  the  note  was  after- 
ward signed  in  Vermont  by  another  joint  maker,  Bryant  v.  Edson,  8  Vt.  325 
(1836)  ;  or  was  dated  in  another  State,  Blodgett  v.  Durgin,  32  Vt.  361  (1859). 

•Chitty  376;  1  Edwards  g  710;  2  Parsons  324  to.;  Story  on  Bills  I  334; 
Story  on  Notes  \  216;  Thorp  v.  Craig,  10  Eowa  461  (1860) ;  'Bowen  v.  Newell, 
13  N.  Y.  290  (1855) ;  Skelton  v.  Dustin,  92  111.  49  (1S79) ;  Bank  of  Washing- 
ton v.  Triplett,  1  Pet.  25  (1828);  Goddin  i>.  Shipley,  7  B.  Mon.  575  (1847) ; 
Dollfus  v.  Prosch,  1  Denio  367  (1845).  So,  English  Bills  of  Exch.  Act  1882 
§  72.  So,  a  certificate  of  deposit  payable  in  New  York  city  on  Sunday,  was 
held  by  the  local  usage  of  that  place  to  be  due  without  grace  on  Saturday, 
Kilgore  v.  Bulkley,  14  Conn.  362  (1841). 

7  2  Parsons  324  n. 

8Ellis  v.  Commercial  Bank,  7  How.  294  (Miss.  1843);  2  Edwards  \  796; 
v.  Perkins,  2  Mich.  23S  (1851 ) ;  and  not  by  the  lex  fori,  Byles  408.  So, 
Pierce  r.  Insdeth,  16  Otto  546  (1882). 

D 


50  WHAT    LAW    GOVERNS. 

or  must  be  made  by  the  notary  himself  is  to  be  determined 
by  that  law.1  But  the  necessity  of  demand  for  payment 
after  presentment  for  acceptance  and  refusal  to  accept  is  to 
be  settled  as  against  the  indorser  by  the  law  of  the  place  of 
indorsement.2 

The  law  of  the  place  of  payment  governs  the  protest  of  a 
bill  or  note  as  well  as  its  presentment.3  And  if  that  law 
requires  the  protest  to  be  sealed,  as  in  Alabama,  it  has  been 
held  inadmissible  in  evidence  in  the  courts  of  another  State 
without  a  seal.4  So,  the  notice  of  dishonor  is  governed  by  the 
lex  loci  solutionis.5  And  this  is  true  in  England  as  regards 
the  indorser, itbeing  considered  partof  the  indorser's  contract.6 
Thus,  if  notice  of  protest  is  not  required  by  the  law  of  Spain 
(where  the  bill  is  payable)  on  non-acceptance,  an  English 
indorser  will  be  liable  to  his  indorsee  on  receiving  immediate 
notice  from  him  after  he  had  received  notice,  although  such 
indorser  received  no  notice  of  dishonor  from  the  holder  until 
twenty  days  after  the  maturity  of  the  bill.7  But  the  authority 
of  this  rule  has  been  questioned  by  Judge  Story,  and  most 
American  cases  have  held  that  the  notice  of  dishonor  is  to 
be  given  according  to  the  law  of  the  place  of  indorsement, 

*McCane  v.  Fitch,  4  B.  Mori.  600.  So,  presentment  for  acceptance  and 
protest  for  non-acceptance,  by  the  local  nsage  where  the  drawee  resides, 
Nelson  u.  Totterall,  7  Leigh  179  (1S36).  But  this  is  contrary  to  the  general 
rule,  Onondaga  Bank  v.  Bates,  3  Hill  53.  In  such  case  the  foreign  usage 
must  be  proved,  McCane  v.  Fitch,  supra;  Chenowith  v.  Chamberlin,  6  B. 
Mon.  60  (1845). 

2Story  on  Notes  ?  171;  Aymar  v.  Sheldon,  12  Wend.  439  (1S34)  ;  Powers 
v.  Lynch,  3  Mass.  77  (1807). 

'•_'  Parsons  336;  Ellis  v.  Commercial  Bank,  7  How.  294  (Miss.  1843); 
Chatham  Bank  v.  Allison,  15  Iowa  357  (1863) ;  Carter  v.  Union  Bank,  7 
Humph.  547  (1847) ;  Snow  v.  Perkins,  2  Mich.  238  (1851) ;  Simpson  v.  White, 
40  N.  H.  540  (1860) ;  Ross  v.  Bedell,  5  Duer  462  (1856).  See,  too,  In  re  Pul- 
sifer,  14  Fed.  Rep.  247  (1880).    And  see  English  Bills  of  Exch.  Act  1882  §  72. 

♦Ticknor  v.  Roberts,  11  La.  14  (1837). 

5Byles408;  2  Edwards  g  796;  Mathewson  v.  Carman,  U.  C.  1  Q.  B.  259 
(1843) ;  irrespective  of  the  indorser's  residence,  Smith  v.  Hall,  U.  C.  3  Q.  B. 
315  (1847). 

"Rothschild  v.  Currie,  1  Q.  B.  43  (1841) ;  Hirschfeld  v.  Smith,  L.  R.  1  C.  P. 
340  (1806).  So,  too,  where  time  for  demand,  protest  and  notice  have  been 
extended  on  account  of  the  outbreak  of  war  by  law  of  such  place  of  pay- 
ment passed  after  the  bill  was  drawn  and  before  its  maturity,  Rouquette  v. 
Overman,  L.  R.  10  Q.  B  525  (1875). 

'Home  v.  Rouquette,  L.  R.  3  Q.  B.  D.  514  (1878). 


LIMITATION    OF    ACTION.  51 

so  far  as  it  concerns  the  indorser.1  And  where  no  place  of 
payment  is  designated,  the  indorser  will  be  entitled  to  notice 
of  dishonor  if  it  is  required  by  the  lex  loci  contractus.2, 

§  53.  Remedy — Governed  by  Lex  Fori. — The  remedy  and 
its  form  are  governed,  of  course,  by  the  lex  fori?  And  as  to 
this,  the  foreigner  must  take  the  law,  where  he  brings  his 
action,  as  he  finds  it.4  The  lex  fori  determines  the  extent 
of  the  remedy;5  as  well  as  the  form  of  action,  e.  g.  debt  or 
assumpsit;6  and  the  jurisdiction  of  its  own  courts.7  So,  too, 
the  method  of  process,  by  arrest  or  otherwise,  is  a  question 
for  the  lex  fori  to  determine.8 

§  54.  Limitation  of  Action — What  Law  Governs. — The  time 
within  which  an  action  shall  be  brought  is  also  a  question 
for  the  lex  fori.9     And  an  action  may  be  brought  by  the  lex 

'Story  on  Bills  \  285;  Story  on  Notes  \  177;  Snow  v.  Perkins,  2  Mich.  238 
(1851) ;  Simpson  v.  White,  40  N.  H.  540  (1860).     And  see  g  38,  supra. 

2  Wright  v.  Andrews,  70  Me.  86  (1879),  the  place  of  making  the  contract 
requiring  in  this  case  notice  to  he  given  to  an  indorser  in  blank. 

3  Wharton  Confl.  Laws  \  747;  Byles  407;  1  Daniel  842;  1  Edwards  220:  2 
Parsons  366  ;  Don  v.  Lippmann,  5  CI.  &  Fin.  1 ;  Mel  an  v.  Fitzjames,  1  Bos.  & 
P.  138;  Porter  v.  Munger,  22  Vt.  191  (1850)  ;  Douglas  v  Oldham.  6  N.  H.  150 
(1833) ;  Scoville  v.  Canfield,  14  Johns.  338  (1817) ;  Bank  of  the  United  States 
v.  Donnally,  8  Pet.  361  (1834) ;  Van  Reimsdyke  v.  Kane,  1  Gall.  371  (1812)  ; 
Smith  v.  Spinolla,  2  Johns.  198  (1807):  Taberrer  v.  Brentnall,  3  Harr.  262, 
265  (1841) ;  Garr  v.  Stokes,  1  Harr.  403,  405  (1838) ;  Gulick  v.  Loder,  1  Gr. 
68  (1832);  Bulger  v.  Roche,  11  Pick.  36,  38  (1831)  ;  Goodman  v.  Munks.  8 
Port.  (Ala.)  84  (1838);  Davis  v.  Morton,  5  Bush  160  (1869);  Armour  v.  Mr- 
Michael,  7  Vr.  92,  94  (1872) ;  Varick  v.  Crane,  3  Gr.  Ch.  128  (1837) ;  Grim- 
■shaw  v.  Bender,  6  Mass.  157  (1809) ;  Burrows  v.  Hannegan,  1  McLean  315. 

4  Wharton  Confl.  Laws  \  529;  1  Daniel  842;  De  la  Vega  v.  Vianna,  1  B.  & 
Ad.  264  (1830) ;  Taberrer  v.  Brentnall,  3  Harr.  262  (N.  J.  1841) ;  and  this  ap- 
plies to  the  citizens  of  the  different  States,  Williams  v.  Haines,  27  Iowa  251 
(1869). 

1 1  link  ley  v.  Marean,  3  Mason  88  (1822) ;  Trasher  v.  Everhart,  3  Gill  &  J. 
234  (1831) ;  Steele  v.  Curie,  4  Dana  381  (1836) ;  Porter  v.  Munger,  22  Vt,  191 . 
197  (1850).     But  see,  contra,  Urton  v.  Hunter,  2  W.  Va.  S3  (1867). 

61  Daniel  844;  Bank  of  United  States  v.  Donnally,  8  Pet.  361  (1834);  Le 
Roy  v.  Beard,  8  How.  451  (1850) ;  Williams  v.  Haines,  27  Iowa  251  (1869) ; 
Andrews  v.  Herriot,  4  Cow.  ~>0S  (1825),  overruling  Meredith  v.  Hinsdale,  2 
Caines  362  (1805) :  Warren  v.  Lynch,  5  Johns.  239  (1810) ;  Steele  v.  Curie,  4 
Dana  381  (1836).     And  see  Trasher  v.  Everhart,  3  Gill  &  J.  234  (1831). 

7 Hunt  v.  Hunt,  72  N.  Y.  217  (1878). 

"Byles  407;  De  la  Vega  v.  Vianna,  1  B.  &  Ad.  284,  overruling  Melan  v 
Fitzjames,  1  Bos.  &  P.  138;  Shaw  v.  Harvey,  M.  &  M.  526. 

9 Byles  407;  1  Edwards  \  220;  2  Parsons  385;  1  Daniel  843;  British  Linen 
Co.  v.  Drummond,  10  B.  &  C.  903;  Mineral  Point  R.  R.  Co.  v.  Banon,  83  111. 
365  (1S76) ;  Taberrer  v.  Brentnall.  3  Harr.  262,  265  (N  J.  1841 ) :  Jones  v.  Hook, 
2  Rand.  303  (1824);  Pearsall  v.  Dvvight,  2  Mass.  84,  89  (1806);    Miller  v. 


52  WHAT    LAW    GOVERNS. 

fori,  although  it  has  not  accrued  yet  by  the  lex  loci  contractus} 
So  far  as  statutes  of  limitation  are  mere  laws  of  pro- 
cedure the  lex  fori  governs  the  case;2  but  if  the  statute  goes 
to  the  extinguishment  of  the  right  itself,  the  lex  loci  con- 
tractus may  be  the  rule  that  controls.3  The  courts  of  one 
State  may  entertain  an  action  that  would  be  barred  by  the 
law  of  another  (the  place  of  contract),  if  the  statute  of  limit- 
ations ha-s  never  attached  in  the  former  State.4  But  if  an 
action  is  barred  by  the  statute  of  limitations  in  the  place  of 
the  debtor's  doraicil,  the  courts  of  another  State  will  generally 
treat  it  as  barred  iu  their  State  also;5  although  the  statute 
never  began  to  run  at  the  forum,  and  the  debtor  who  never 
resided  there  appeared  to  be  excepted  from  the  bar  of  the 
statute  as  a  non-resident.6 

Brenham,  68  N.  Y.  83  (1877) ;  Urton  v.  Hunter,  2  \V.  Va.  83  (1867) ;  Hogett 
v.  Emerson,  8  Kans.  262  (1871);  Smith  v.  Spinolla,  2  Johns.  198  (1807); 
Ruggles  v  Keeler,  3  lb.  261  (18D8) ;  Peck  v.  Hozier,  14  lb.  346  (1817);  De- 
couche  v.  Savetier,  3  Johns.  Ch.  190  (1817)  ;  Gans  v.  Frank,  36  Barb.  320 
(1862) ;  Power  v.  Hathaway,  43  Barb.  214  (1864) ;  Paine  v.  Drew,  41  N.  H. 
306  (1862) ;  Thibodeau  v.  Levassuer,  36  Me.  362  (1853) ;  Medbury  v  Hopkins, 
3  Conn.  479  (1820) ;  Bruce  v.  Luck,  4  Gr.  143  (Iowa  1853)  ;  Nash  v.  Tupper, 
1  Cai.  402  (1803);  Lincoln  v.  Battelle,  6  Wend.  475  (1831);  Fletcher  v. 
Spaulding,  9  Minn.  64  (1864) ;  Brown  v.  Stone,  4  La.  An.  235  (1849)  ;  Murray 
v.  Fisher,  5  Lans.  98  (1871).  Especially  where  it  is  also  the  defendant's 
domicil,  and  that  irrespective  of  the  plaintiff's  domicil  being  in  another 
State,  Fletcher  v.  Spaulding,  supra. 

1  Clark  v.  Conner,  2  Strobh.  346  (1847). 

2  Wharton  on  Conn,  of  Laws  ?  535 ;  Williams  v.  Jones,  13  East  439  (1811) ; 
Huber  v.  Stiner,  2  Bing.  N.  C.  202;  Don  v.  Lippmann,  5  CI.  &Fin.  1  (1837); 
Ruckmabove  v.  Mottichund,  S  Moo.  P.  C.  4;  De  la  Vega  v.  Vianna,  1  B.  & 
Ad.  284  (1830) ;  British  Linen  Co.  v.  Drummond,  10  B  &  C.  903  (1830)  ;  Van 
Reimsdyke  v.  Kane,  1  Gall.  371  (1S12) ;  Le  Roy  v.  Crowninshield,  2  Mason 
151  (1820) ;  Hinkley  v.  Marean,  3  lb.  88  (1822) ;  Titus  v.  Hobart.  5  lb.  378 
(1829) ;  Bank  of  the  United  States  v.  Donnally,  8  Pet.  361  (1834) ;  M'Elmovle 
v.  Cohen,  13  lb.  312  (1839);  Pearsall  v.  Dwight,  2  Mass.  84  (1806);  Wood- 
bridge  v.  Wright,  3  Conn.  523  (1821);  Atwater  v.  Townsend,  4  lb.  47  (1821). 

3Byles  407;  1  Daniel  84.1;  2  Parsons  385;  Lord  Ellenborough,  C.  J.,  in 
Williams  v.  Jones,  13  East  439.  See,  too,  Huber  v.  Steiner,  2  Bing  N.  C.  202 ; 
Don  v.  Lippmann,  5  CI.  &  Fin.  1 ;  Harris  v.  Quine,  L.  R.  4  Q.  B.  653. 

'Power  v.  Hathawav,  43  Barb.  214  (1864);  Bulger  v.  Roche,  11  Pick.  36 
(1831) ;  Putnam  v.  Dike,  13  Gray  535  (1859) ;  Estes  v.  Kyle.  Meigs  34  (1838 1  : 
Byrne  v.  Crowninshield,  17  Mass.  55  (1820);  Brown  v.  Parker,  28  Wis.  21 
(1871);  contra,  Harrison  v.  Stacy,  6  Rob.  15  (1813);  Goodman  v.  Munks,  8 
Port.  84  (1838). 

5Wernse  v.  Hall,  101  111.  423  (1882). 

6Beardsley v. Southmavd.  3 Gr.  171  (N.J.) ;  Taberrer v. Brentn&;i,3 Harr. 262 
(N.  J.  1841) ;  Wood  v.  Leslie,  6  Vr.  472  (1872).  See,  too,  Hale  u  Lawrence,  1 
Zab.  741  (1848) ;  Howe  v.  Lawrence,  2  lb.  107.  But  see  Ridge  t.  Cowley,  6  B. 
J.  Lea  166  (1880),  where  the  payee's  residence  was  the  place  of  the  action,  and- 


PARTIES.  53 

The  statute  of  limitation  of  the  forum  will  be  enforced, 
although  by  the  law  of  the  place  of  contract  there  is  a  differ- 
ent limitation  proved.1  80,  too,  although  the  place  of  con- 
tract has  no  such  statute.2  Ou  the  other  hand,  the  lex  fori 
will  not  permit  a  judgment  of  the  courts  of  another  Sta«te  to 
be  enforced  within  its  limits  against  the  bar  of  its  own  statute, 
but  will  restrain  such  suit  by  perpetual  injunction.3 

§  55.  Parties — Evidence — What  Law  Governs. — Who  is 
the  proper  person  to  bring  an  action  is  to  be  determined 
by  the  lex  fori}  Thus,  the  lex  fori  may  require  an  assignor 
who  has  transferred  a  bill  without  indorsement,  to  bring  the 
action  in  his  own  name,  although  the  lex  loci  contractus  re- 
quires that  the  action  be  brought  by  the  real  party  in  interest.5 

So,  the  lex  fori  determines  the  competency  of  a  witness.6 
And  the  incompetency  of  a  witness  in  another  State  by  reason 
of  his  conviction  for  crime  in  that  place  does  not  affect  him, 
unless  he  is  rendered  incompetent  by  the  lex  fori  also.7 

The  admissibility  of  evidence  is  also  a  question  for  the 
lex  fori,  e.  g.  admissibility  of  parol  evidence  to  explain  a 
blank  indorsement.8  So,  the  admissibility  of  a  foreign  cer- 
tificate of  protest  to  prove  demand  and  notice  of  dishonor.9 
So,  a  note  which  is  not  admissible  in  the  courts  of  the  place 
of  contract  for  want  of  a  stamp  required  by  the  local  law 
(but  not  made  void  for  want  of  such  stamp),  may  still  be  ad- 

the  Tennessee  statute  was  held  to  run  only  from  the  debtor's  removal  into 
Tennessee,  although  the  debt  was  then  barred  by  the  lex  loci  contractus. 

1British  Linen  Co.  v.  Drummond,  10  B.  &  C.  903.  So,  Jones  v.  Hook,  2 
Rand.  303  (1824),  decided  under  the  Virginia  statute. 

2Nicol.ls  v.  Rodgers.  2  Paine  437  (1827) ;  Pearsall  v.  D wight,  2  Mass.  84,  90 
(1800).  And  the  United  States  courts  apply  the  statute  of  limitations  of  the 
State  in  which  they  are  sitting,  Nieolls  v.  Rodgers,  supra. 

3Brown  v.  Parker,  28  Wis.  21  (1871). 

4  Wharton  on  Conn.  Laws  §  457;  1  Daniel  843;  2  Parsons  368;  Bradlaugh 
v.  DeRin,  L.  R  5  C  P.  473  (1870),  reversing  L  R.  3  C.  P.  538;  Mayhew  v. 
Pentecost,  129  Mass.  332  (1880).  See,  too,  O'Callaghan  v.  Thomond,  3  Taunt. 
82;  Fisk  v.  Brackett,  32  Vt.  798  (I860). 

5Fos<  r.  Nutting,  14  Gray  484  (1860). 

61  Daniel  846 ;  Wharton  Conn.  Laws  I  768;  Story  Confl.  Laws  \  635;  Bain 
v.  Whitehaven,  &c,  Junction  Ry.  Co.,  3  H.  L.  Cas.  1. 

7 Sims  r.  Sims,  75  N.  Y.  466  (1878). 

8 Downer  v.  Chesebrough,  36  Conn.  39. 

'Kirtland  v.  Wanzer,  2  Duer  278  (1853). 


54  WHAT    LAW    GOVERNS. 

missible  elsewhere.1  But  if  the  question  is  as  to  the  effect 
of  the  evidence,  it  is  said  that  the  law  of  the  place  of  con- 
tract should  prevail.2  The  English  courts  have,  however, 
refused  to  admit  in  evidence  a  verbal  contract,  made  in 
France  and  valid  there,  but  void  in  England  by  the  statute 
of  frauds.3 

§  56.  Damages — Interest — Exchange — Set-Off. — The  dam- 
ages to  be  recovered,  like  interest,  are  in  general  to  be  de- 
termined by  the  lex  loci  contractus?  But  courts  will  not 
enforce  the  law  of  a  foreign  place  of  contract  authorizing 
deduction  as  a  penalty  for  usury  of  triple  the  sum  taken.5 

What  law  shall  determine  the  rate  of  interest  after  ma- 
turity has  been  variously  decided.  Thus,  it  has  been  held 
that  in  this  respect  the  law  of  the  forum  and  place  of  con- 
tract yields  to  that  of  the  place  of  payment;6  that  the  law 
of  the  place  of  contract  yields  to  that  of  the  forum  and  place 
of  payment  ;7  and  that  the  law  of  the  place  of  payment  and 
contract  yields  to  that  of  the  forum.0 

The  currency,  weights  and  measures  intended  will  be  de- 
termined by  the  lex  loci  solutionis.9  The  existing  rate  of 
exchange  also  forms  part  of  the  holder's  recovery.10    But  this 

!Fant  v.  Miller,  17  Gratt.  47  (1866);  Lambert  v.  Jones,  2  Patt.  &  H.  144 
(1856). 

2 Mason  v.  Dousay,  35  111.  424  (1864). 

3Leroux  v.  Brown,  12  C.  B.  SOI. 

''Story  on  Confl.  Laws  $  307;  2  Parsons  372;  Wharton  on  Confl.  Laws  # 
512;  Cxwrtois  v.  Carpentier,  1  Wash.  C.  C.  376  (1806);  Slacum  v.  Pomery,  6 
Cranch  221  (1810) ;  Bank  of  United  States  v.  United  States,  2  How.  711  (1844)  ; 
Hazelhurst  v.  Kean,  4  Yeates  19  (1803).  The  drawer  is  governed  by  the  law 
of  the  place  of  drawing,  Astor  v.  Benn,  1  Stuart  69  (Canada  1812)  ;  Gibbs  v. 
Freemont,  9  Exch.  25 ;  the  indorser  by  that  of  indorsing,  Slacum  v.  Pomery, 
supra.  So,  the  acceptor  is  governed  as  to  the  rate  of  interest  and  damages 
by  the  law  of  the  place  where  the  bill  was  drawn,  although  different  from 
the  law  of  his  domicil,  Raymond  v.  Holmes,  11  Tex.  54  (1853);  Bailey  v. 
Heald,  17  lb.  102  (1856).  But  see,  contra,  Abel  v.  McMurray,  10  lb.  350 
(1853). 

5  Wright  v.  Bartlett,  43  N.  H.  548  (1862). 

6 Peck  v.  Mayo,  14  Vt.  33  (1S42). 

7Healy  v.  Gorman,  3  Gr.  328  (N.  J.  1836). 

8Ives  v.  Farmers'  Bank,  2  Allen  236  (1861). 

9  Wharton  on  Confl.  Laws  U  437,  514;  Story  on  Confl.  Laws  \\  270,  308; 
Benners  v.  Clements,  58  Penna.  St.  24  (1868) ;  Rosseter  v.  Cahlmann,  8 
Exch.  361  (1853). 

l0Story  on  Confl.  Laws  ?  309;  Wharton  on  Confl.   Laws  \  515;  Cash  v 


DISCHARGE.  55 

has  been  fixed  at  times  by  statute,  which  will  in  such  case 
control  the  market  rate.1 

On  the  other  hand,  the  lex  fori  determines  what  defenses 
are  admissible  (so  far  as  they  are  not  expressly  excluded  by 
the  contract  itself),'2  and  regulates  all  questions  of  set-off,3 
and  pleas  of  want  of  consideration.4  But  if  a  payment  made 
before  maturity  is  no  defense  against  a  bona  fide  holder  for 
value  before  maturity  by  the  lex  loci  contractus,  that  law  will 
control  the  law  of  the  forum  and  exclude  the  defense.5 

§  57.  Discharge  —  Payment — What  Law  Governs. — The 
same  law  that  determines  the  validity  and  construction  of  a 
contract  determines  in  general  what  will  avail  to  discharge 
the  parties.6  If  a  discharge  is  good  by  the  lex  loci  solutionis, 
it  is  sufficient  everywhere.7  But  if  it  is  valid  neither  by  the 
law  of  the  place  of  contract  or  of  payment,  it  will  only  avail 
in  the  place  where  it  was  granted.8     If  the  law  of  the  place 

Kennion,  11  Ves.  314;  Smith  v.  Shaw,  2  Wash.  C.  C.  1(57  (1808):  Lee  v. 
Wilcocks,  5  Serg.  &  R.  48  (1819);  Marburg  v.  Marburg,  26  Md.  9  (1866)  ; 
Grant  v.  Healey,  3  Sumn.  523  (1839). 

1  Wharton  on  Confl.  of  Laws  \  516  ;  Story  on  Notes  £  163 ;  Schofield  v.  Day, 
20  Johns.  102  (1S22) ;  Adams  v.  Cordis,  8  Pick.  260  (1829).  But  the  actual 
rate  may  be  allowed  as  damages,  Adams  v.  Cordis,  supra. 

2Stevens  v.  Norris,  30  N.  H.  466  (1855) ;  Green  v.  Sarmiento,  3  Wash.  C.  C. 
17  (1811). 

3Byles  408;  1  Edwards  |  220;  2  Parsons  375;  1  Daniel  847  ;  Story  on  Confl. 
Laws  I  575;  Gibbs  v.  Howard,  2  N.  H.  296  (1820);  Bank  of  Galliopolis  v. 
Trimble,  6  B.  Mon.  599  (1846);  Mineral  Point  R.  R.  Co.  v.  Barrow,  83  111. 
365  (1876).  But  see  Bliss  v.  Houghton,  13  N.  H.  126  (1842),  where  a  note 
made,  indorsed  and  payable  in  Vermont  was  held  not  to  be  subject  to  the 
set-off  of  a  note  of  the  payee  purchased  by  the  maker  of  the  first  note 
before  its  transfer,  the  purchaser  of  the  first  note  having  no  knowledge  of 
the  set-off  and  the  law  of  Vermont  governing  the  case. 

*  Williams  v.  Haines,  27  Iowa  251  (1869). 

5 Harrison  v.  Edwards,  12  Vt.  648  (1840). 

6 Stevens  v.  Norris,  30  N.  H.  466  (1855) ;  Green  v.  Sarmiento,  3  Wash.  C.  C. 
17  (1811). 

'Story  on  Notes  g  168;  Story  on  Confl.  Laws  §  331 ;  2  Parsons  359. 

8Byles404;  2  Parsons  360;  1  Daniel  837 ;  Story  on  Bills  g  165;  Story  on 
Prom.  Notes  g  168 ;  Bartley  v.  Hodges,  30  L.  J.  Q.  B.  352 ;  Smith  v.  Buchanan, 
1  East  6;  McMillan  v.  McNeil,  4  Wheat  122,  2U9;  Ogden  v.  Saunders,  12  lb. 
213  (1827);  Green  v.  Sarmiento,  Pet.  C.  C.  74  (1810);  Smith  v.  Smith,  2 
Johns.  235  (1807) ;  Sherrill  v.  Hopkins.  1  Cow.  103  (1823);  Pratt  v.  Chase,  44 
N.  Y.  597  (1871);  Frey  v.  Kirk,  4  Gill  &  J.  509  (1832) ;  Betts  v.  Bagley,  12 
Pick.  572  (1832);  Baldwin  v.  Hale,  1  Wall.  223  (1863);  Urton  v.  Hunter.  2 
W.  \'a.  83  (1867).  Scotch  bankruptcy  discharges  form  an  exception  to  this 
rule  by  force  of  the  statute  in  Eugland,  Byles  404;  Smith  v.  Buchanan, 
oupra;  Phillips  v.  Allan,  8  B.  &  C.  477. 


56  WHAT    LAW    GOVERNS. 

of  payment  makes  part  payment  a  discharge,  it  will  be  a 
sufficient  discbarge  everywhere.1  So,  the  sufficiency  of  pay- 
ment by  a  note  or  bill  is  to  be  determined  by  the  law  of  the 
place  of  payment.2  But  it  has  been  held  that  the  effect  of  a 
payment  made  in  another  State  must  be  determined  by  the 
law  of  that  State  rather  than  of  the  place  of  contract  or  of 
the  forum.3  Exemptions  from  levy  and  sale  are  questions 
for  the  lex  fori} 

§  58.  Insolvency  Discharge — What  Law  Governs. — An  in- 
solvent's discharge  by  the  law  of  another  State  will  be  recog- 
nized everywhere  as  binding  on  the  citizens  of  that  State;5  and 
upon  their  subsequent  assignees.6  So,  if  a  bill  drawn  abroad 
upon  an  English  house  and  payable  to  a  foreign  payee  is 
after  non-acceptance  discharged  as  to  the  foreign  drawer  by 
the  law  of  his  place  of  contract,  he  will  be  discharged  in  an 
action  brought  against  him  by  the  payee  in  England.7  Such 
a  discharge  will  also  be  binding  on  a  party  to  the  contract, 
who  was  (at  the  time  the  contract  was  made)  a  citizen  of  the 
State  where  the  discharge  was  granted,  but  who  moved  into 
another  State  before  the  discharge  took  place.8 

But  such  discharge  will  not  be  binding  upon  the  citizens 

^yles  403  ;  Ralli  v.  Dennistonn,  6  Exch.  483. 

2Story  on  Notes  §  168;  Bartsch  v  Atwater,  1  Conn.  409  (1815).  So,  a  bill 
payable  in  France  is  governed  by  the  law  of  France  as  to  the  sufficiency 
of  payment  in  assignats,  Searight  v.  Calbraith,  4  Dall.  325. 

3Winslow  v.  Brown,  7  R.  I.  95  (1861). 

♦Mineral  Point  R.  R.  Co.  v.  Barrow,  83  III.  365  (1876). 

5  2  Parsons  361;  Wharton  on  Confi.  Laws  $  521;  Ogden  v.  Saunders,  12 
Wheat.  213  (1827) ;  Stone  v.  Tibbetts,  26  Me.  110  (1816) ;  Stevens  v.  Norris, 
30  N.  H.  466  (1855);  Brigham  v.  Henderson,  1  Cush.  430  (1848)  ;  Smith  v, 
Parsons,  1  Ohio  236  (1823);  Stoddard  v.  Harrington,  100  Mass.  87  (1868); 
Einer  v.  Beste,  32  Mo.  240  (1862);  Boyle  v.  Zacharie,  6  Pet.  348;  S.  C,  lb. 
635  (1832);  Towne  v.  Smith,  1  Woodb."  &  M.  115  (1845).  Contra,  Farmers' 
and  Mechanics'  Bank  v.  Smith,  6  Wheat.  131  (1821) ;  Sturges  v.  Crownin- 
shield,  416.  122  (1819). 

6 Baker  v.  Wheaton,  5  Mass.  509  (1809). 

7  Byles  403 ;  1  Edwards  \  538 ;  Potter  v.  Brown,  5  East  124 ;  Hicks  v.  Brown, 
12  Johns.  142(1815). 

8Stoddard  v.  Harrington,  100  Mass.  87  (1868).  And  the  drawer  of  such 
bill,  being  afterward  discbarged  as  a  bankrupt  by  the  laws  of  the  country 
where  the  bill  was  drawn  and  where  both  drawer  and  payee  lived,  is  not 
liable  in  the  country  where  it  was  presented  for  acceptance  upon  its  non~ 
acceptance  there,  Potter  v.  Brown,  5  East  124. 


INSOLVENCY.  57 

=©f  another  State,  even  though  the  contract  was  made  in  the 
State  where  the  discharge  was  granted;1  or  was  made  in  the 
State  discharging  it,  payable  generally;2  or  although  the  bill, 
from  which  discharge  is  sought,  was  drawn  and  accepted  in 
the  discharging  State  and  payable  generally  ;3  or  was  drawn 
in  the  place  of  the  forum  payable  in  the  State  where  it  was 
discharged.4  But  if  made  and  payable  in  the  place  where  it 
was  discharged,  it  has  been  held  to  be  a  sufficient  discharge  ;5 
especially  if  the  person  discharged  was  a  citizen  of  that 
State.6  But  a  discharge  under  insolvent  laws  will  have  no 
effect  on  the  citizens  of  another  State,  if  the  contract  was 
neither  made  or  to  be  performed  in  the  State  discharging  it.7 
It  will,  however,  be  binding  on  foreign  citizens  who  assent  to 
it  by  participating  in  dividends  under  it.8 

Every  assignment  of  a  contract  is  a  new  contract  and  the 
assignee  takes  it  free  from  the  defense  arising  out  of  such 
discharge  in  the  place  where  the  original  contract  was  made.9 

1  Whitnev  v.  Whiting,  35  N.  H.  457  (1857) ;  Braynard  v.  Marshall,  8  Pick. 
194  (1829) ;  Ogden  v.  Saunders,  12  Wheat.  213,  358  (1827) ;  McMillan  v.  Mc- 
Neil, 4  lb.  209  (1819);  Watson  v.  Bowne,  10  Mass.  337  (1813);  Agnew  v. 
Plait,  15  Pick.  417  (1834) ;  Glenn  v.  Humphreys,  4  Wash.  C.  C.  424  (1823) ; 
Hobblethwaite  v.  Battins,  1  Miles  82  (1835) ;  White  v.  Canrield,  7  Johns.  117 
(1810) ;  Peck  v.  Hozier,  14  lb.  346  (1817) ;  Baldwin  v.  Hale,  1  Wall.  223  (1863) ; 
Chase  v.  Flagg,  48  Me.  182  (1859) ;  James  v.  Allen,  1  Dall.  188  (1788) ;  Felch 
v.  Bugbee,  48  Me.  9  (1859) ;  Smith  v.  Smith,  2  Johns.  235  (1807) ;  Hibernia 
Nat.  Bank  v.  Lacombe,  81  N.  Y.  367  (1881).  But  see  Blanchard  v.  Russell, 
13  Mass.  1  (1816). 

2Green  v.  Sarmiento,  3  Wash.  C.  C.  17  (1811);  Ilsley  v.  Merriam,  7  Cush. 
242  (1851);  Clark  v.  Hatch,  lb.  4.55  (1851). 

3  Whitney  v.  Whiting,  35  N.  H.  457  (1857). 

4  Donnelly  v.  Corbett,  7  N.  Y.  500  (1852). 

6Betts  v.  Bagley,  12  Pick.  572  (1832) ;  Brown  v.  Collins,  41  N.  H.  405  (1860) ; 
Stone  v.  Tibbette,  26  Me.  110  (1846). 

6Scribner  v.  Fisher,  2  Gray  43  (1854);  Blanchard  v.  Russell,  13  Mass.  1 
(1816) ;  overruled  by  Baldwin  v.  Hale,  1  Wall.  223  (1863).  But  see  Kelley 
v.  Drury,  9  Allen  27  (1864). 

'Palmer  v.  Goodwin.  32  Me.  535  (1851) ;  Stevenson  v.  King,  2  Cliff  1  (1861)  ; 
Savove  v.  Marsh,  10  Mete.  594  (1846)  :  Fiske  v.  Foster,  lb.  597  (1846) ;  Bray- 
nard v.  Marshal],  8  Pick.  194  (1829) ;  Sherrill  v.  Hopkins.  1  Cowen  103  (1823) ; 
Smith  v.  Smith,  2  Johns.  235,  241  (1807)  ;  Beer  v.  Hooper,  32  Miss.  246  (1856) ; 
-Cook  v.  Moffat,  5  How.  295  1 1847)  :  Ogden  v.  Saunders,  12  Wheat.  213  (1827) ; 
Boyle  v.  Zacharie,  6  Pet.  348:  S.  C,  lb.  635  (1832). 

8  Wharton  on  Confl.  Laws  g  524:  1  Edwards  ?  538;  Clay  v.  Smith,  3  Pet. 
411  (1830):  Gardner  v.  Oliver  Lee's  Bank,  11  Bar!).  558  (1852):  Phelps  v. 
Borland,  30  Hun  362  (1863). 

9  Potter  v.  Kerr.  1  Md.  Ch.  275  (1848) ;  Easterlv  v.  Goodwin,  35  Conn.  279 
(186S) :  Very  v.  McHenry,  29  Me.  206  (1848) ;  Banks  v.  Greenleaf,  6  Call.  271 


58  WHAT    LAW    GOVERNS. 

So,  the  indorsee  of  a  bill  or  note  will  not  be  affected  by  a 
foreign  discharge,  though  granted  where  the  contract  was 
originally  made.1  So,  where  a  bill  drawn  and  indorsed  in 
France  but  accepted  and  payable  in  England  has  been  can- 
celed by  mistake,  and  the  parties  decreed  to  be  discharged  in 
France,  the  indorser  will  still  be  held  liable  in  England  to 
his  indorsee.2 

In  like  manner,  an  acceptance  is  a  new  contract  and  will 
not  be  discharged  by  an  insolvent  discharge  granted  under 
the  law  of  the  place  of  original  contract.3  But  a  foreign  dis- 
charge of  the  drawer  in  the  place  of  acceptance  will  be  en- 
forced by  injunction  in  England  in  the  acceptor's  defense.4 

Where  the  action  is  brought  in  the  place  of  contract,  its 
law  will  determine  as  to  that  forum  the  validity  of  an  insolv- 
ent discharge,  and  not  the  law  of  the  party's  domicil.5  So, 
on  this  question,  the  law  of  the  forum  (which  was  also  the 
place  of  payment)  will  control  the  law  of  the  place  of  con- 
tract and  of  date.6 

§  59.  Foreign  Statutes  as  to  Conflict  of  Laws. — It  is  pro- 
vided by  statute  in  some  States  that  the  lex  loci  contractus  of 
foreign  contracts  shall  govern  them.7     But  some  of  them  ex- 

(1799) ;  Worthington  v.  Jerome,  5  Blatch.  279  (1865).  But  see,  contra,  Park- 
inson v.  Scoville,  19  Wend.  150  (1838). 

1  Wharton  on  Conn.  Laws  \ 528;  Baldwin  v  Hale,  1  Wall.  223  (1863) ;  Munroe 
v.  Guilleaume,  3  Keyes  30  (1866) ;  Poe  v.  Duck,  5  Md.  1  (1853) ;  Frey  v.  Kirk, 
4  Gill  &  J.  509  (1832) ;  Gilman  v.  Lock  wood,  4  Wall.  409  (1866) ;  Woodhull 
v.  Wagner,  Baldw.  296  (1831) ;  Springer  v.  Foster,  2  Story  383  (1843) ;  Towne 
v.  Smith,  1  Woodb.  &  M.  115  (1845);  Bancher  v.  Fisk,  33  Me.  316  (1851); 
Urton  v.  Hunter,  2  W.  Va.  83  (1867);  Houghton  v.  Maynard,  5  Gray  552 
(1856);  Produce  Bank  v.  Farnum,  5  Allen  10  (1862).  See,  too,  Brighton 
Bank  v.  Merick,  11  Mich.  405  (1863);  Anderson  v.  Wheeler,  25  Conn.  603 
(1857). 

2Novelli  v.  Rossi,  2  B.  &  Ad.  757. 

3 Lewis  v.  Owen,  4  B.  &  Aid.  654. 

4Byles  403 ;  Burrows  v.  Jemimo,  2  Stra.  733.  And  see  Wynne  v.  Calendar, 
1  Russ.  295. 

5Sherrill  v.  Hopkins,  1  Cow.  103  (1823),  overruling  Penniman  v.  Meigs,  9 
Johns.  325  (1812),  so  far  as  it  held  that  a  discharge  under  the  lex  fori  would 
govern  in  that  forum  all  contracts  wherever  made. 

6  Cook  v.  Moffat,  5  How.  295  (1846). 

''Argentine  Republic  (1862  Code  Com.  Art.  914) ;  Austria  (1850  Exch.  Law 
Art.  85) ;  Brazil  (1850  Code  Com.  Art.  424) ;  Germany  (1848  Exch  Law  Art. 
85);  Nicaragua  (1869  Code  Com.  Art.  269);  Sweden  (i851  Exch.  Law  %  82)  ; 
Switzerland  (Exch.  Laws,  Basle  1863,  Berne  1859  \  94)  :  Uruguay  (1865  Code 
Com    Art.  931). 


FOEEIGN    STATUTES    AS    TO    CONFLICT    OF    LAWS.  5l> 

cept  contracts  between  subjects  of  the  enacting  State,  who 
are  to  be  governed  by  their  home  law.1  Some  States  pro- 
vide that  the  lex  loci  contractus  shall  govern  as  to  demand, 
acceptance,  payment,  protest,  notice  of  dishonor  and  formal 
requisites  of  bills  and  notes.2  Others  provide  that  formal 
defects  under  the  lex  loci  contractus  in  a  foreign  bill  shall  be 
no  defense  against  a  subsequent  domestic  indorsement.3  The 
Spanish  law  subjects  Spanish  bills  payable  abroad  to  the  law 
of  the  place  of  payment  as  to  demand  and  protest.4  The 
Swiss  law  permits  the  law  of  a  foreign  domicil  to  determine 
whether  the  party  to  a  contract  is  legally  capable  of  con- 
tracting.5 While  the  German  and  Swedish  laws  permit 
questions  of  capacity  to  be  governed  by  the  foreign  law  of 
the  domicil,  unless  the  contract  is  made  in  their  own  territory 
and  the  parties  are  capable  by  its  law.6  Questions  of  pro- 
cedure are,  however,  to  be  determined  by  the  lex  fori} 

1 Austria  (1850  Exch.  Law  Art.  85) ;  Denmark  (1825  Exch.  Law  §  9) ;   Get 
many  (1848  Exch.  Law  Art.  85) ;  Sweden  (1851  Exch.  Law  Art.  82). 

^Argentine  Republic  (1862  Code  Com.  Art.  914) ;  Austria  (1850  Exch.  Law- 
Art.  85) ;  Brazil  (1850  Code  Com.  Art.  424) ;  Germany  {\8i8  Exch.  Law  Art, 
85) ;  Nicaragua  (1869  Code  Com.  Art.  269) ;  Sweden  (1851  Exch.  Law  \  S2)  ; 
Switzerland  (Basle  1863  Exch.  Law  \  94) ;  Berne  (1859  Exch.  Law  I  94) ;  Uru- 
guay (1865  Code  Com.  Art.  931). 

3 Argentine  Republic  (1S62  Code  Com.  Art.  914) ;  Austria  (1850  Exch.  Law 
Art.  85) ;  Germany  (1848  Exch.  Law  Art.  85)  ;  Sweden  (1851  Exch.  Law  \  82) ; 
Uruguay  (1865  Code  Com.  Art.  931). 

'Colombia  (1853  Code  Com.  Art.  440) ;  Spain  (1829  Code  Com.  Art.  486). 

Switzerland  (Exch.  Laws,  1859  Berne,  1863  Basle  \  93). 

^Austria  (1850  Exch.  Law  Art.  84);  Germany  (1848  Exch.  Law  Art,  S4); 
Sweden  (1851  Exch.  Law  Art.  81). 

''Austria  (1850  Exch.  Law  Art.  86) ;  Germany  (1848  Exch.  Law  Art.  86)  ; 
Sweden  (1851  Exch.  Law  Art.  80) ;  Switzerland  (Exch.  Laws.  1859  Berne,  1863 
Basle  I  95). 


60  FORMAL     REQUISITES. 

CHAPTER  III. 
FORMAL  REQUISITES. 

/.  Writing  and  Signature. 
II.  Sealed  Instruments. 
III.  Date. 


I.    WRITING,    SIGNATURE    AND    ATTESTATION. 

60.  Writing  and  Printing. 

61.  Material. 

62.  Signature — Necessary. 

63.  What  Name. 

64.  Seal— Mark— Stamp— Printing. 

65.  Position. 

66.  Irregular  Indorsements. 

67.  Pleading — Evidence. 

68.  Attestation — Statutes. 

69.  Proof  of  Attesting  Witness. 

§  60.  Writing  and  Printing. — Every  form  of  commercial 
paper  implies  a  written  instrument  by  its  very  definition. 
It  must  be  in  writing.1  And  it  is  conceived  that  this  is 
universally  true.  It  is  the  case  in  the  civil  law  States 
and  in  Germany.2  It  is  also  implied,  if  not  expressly  re- 
quired, by  the  use  of  such  words  as  "writing,"  "written," 
&c,  in  the  statutes  of  many,  if  not  all,  of  the  United  States,3 
and  in  the  definitions  contained  in  many  foreign  statutes.4 

Writing  does  not,  however,  necessarily  imply  ink.     It  may 

lChitty  147;  1  Daniel  82;  1  Edwards  \  168;  Story  on  Bills  \  33;  Story  on 
Prom.  Notes  \  9;  Thomas  v.  Bishop,  R.  T.  Hardw.  2;  S.  C,  2  Stra.  955. 

21  Pardessus  344;  Thiol's  Wechselrecht  141. 

3Arkansas  (1874  R.  S.  g  563) ;  California  (1872  Civ.  Code  I  8087) ;  Colorado 
(1877  G.  L.  p.  110  I  90)  ;  Dakota  (1877  R.  C.  I  1821) ;  Delaware  (1874  R.  C.  c. 
63  \  8) ;  Georgia  (1873  Code  §  2774) ;  Idaho  (1875  R.  L.  p.  652  \  1) ;  Illinois 
(1880  R.  S.,  Hurd's  Ed.,  c.  98  I  3) ;  Indiana  (1  R.  S.  187K,  Davis'  Ed.,  c.  177  I 
1) ;  Iowa  (1880  R.  C.  I  2082) ;  Michigan  (1  Comp.  L.  1871  p.  515  \  1) ;  Missis- 
sippi (1880  R.  C.  §  1123)  ;  Nevada  (1  Comp.  L.  1873  c.  5  g  9) ;  New  Jersey  (1874 
Rev.  p.  897  g  1) ;  New  York  (2  R.S.  Ed.  1875,  p.  1160  g  1) ;  Pennsylvania  (187? 
Purd.  Dig.  p.  1173  gg  1,  2) ;  Wisconsin  (1878  R.  S.  g  1675). 

♦Bills  of  Exchange  Act  1882,  45  and  46  Vict.  c.  61  §  3;  Belgium  (Code  Na- 
poleon a.  D.  1807  g  110) ;  Bolivia  (Cod.  Merc.  1834  g  349) ;  Chili  (Cod.  Com. 
1S65  Art.  632) ;  France  (Code  Napoleon,  supra)  ;  Holland  (Cixle  Com.  g  100)  ; 
Hungary  (Law  of  1860,  ch.  1  §  1);  Lower  Canada  (Civil  Code  1867  g  2279) 
Italy  (Cod.  Com.  1865  Art,  196). 


MATERIAL.  61 

be  in  pencil,1  or  any  other  material  capable  of  making  a 
legible  writing.  "Writing"  must  moreover  be  held  to  in- 
clude printing,2  at  least  as  regards  the  body  of  the  instrument, 
for  which  it  is  not  unusual  to  employ  a  printed  form.  Print- 
ing in  its  turn  of  course  includes  lithography,  engraving  and 
every  means  by  which  letters  are  impressed  in  ink  or  color 
i  n  the  surface  of  paper  or  other  like  material. 

§  61.  Material. — Bills,  notes  and  other  instruments  of  ex- 
change, although  often  spoken  of  as  commercial  paper,  and 
usually  written  or  printed  on  paper,  are  not  necessarily  so.a 
Unusual  form  and  material  are  clearly  to  be  avoided  as  sub- 

'Byles  79;  Chitty  147  ;  1  Daniel  83;  1  Edwards  §169;  1  Parsons  21 ;  Story 
on  Prom.  Notes  \  11.  This  was  first  held  as  to  notes  in  1826  in  Geary  v. 
Physic,  5  B.  &  C.  234;  S.  C,  7  Dow.  &  By.  653;  all  the  judges  concurring. 
It  has  been  followed  in  Closson  v.  Stearns,  4  Vt.  11;  Brown  v  Butcher's  ami 
Drover's  Bink,  6  Hill  443;  Reed  v.  Roark,  14  Tex.  329.  See,  too,  Thol  W. 
R.  141,  for  recognition  of  the  same  principle  in  Germany.  Mr.  Parsons, 
however,  speaks  of  the  decision  in  Geary  v.  Physic  as  rendered  "incau- 
tiously" (1  Parsons  22),  and  Mr.  Justice  Story  regrets  the  establishment 
of  the  doctrine  (Story  on  Prom.  Notes  g  11). 

Writing  in  pencil  has  been  held  sufficient  in  case  of  a  deed  of  settlement, 
McDowel  v.  Chambers,  1  Strobh.  Eq.  347 ;  a  contract,  Merritt  v.  Clason.  12 
Johns.  102;  S.  C,  14  lb.  484;  Jeffery  v.  Walton,  1  Stark.  267;  Draper  v.  Pat- 
tani,  2  Speers  292  (under  the  statute  of  frauds)  ;  a  will,  Green  v.  Skipworth, 
1  Phillim.  53;  Dickenson  v.  Dickenson,  2  Phillim.  173;  or  &  codicil  to  a  will, 
Rymes  v.  Clarkson,  1  Phillim.  22. 

21  Daniel  84;  so  Story  on  Prom.  Notes  §  11,  and  Thol  W.  R.  141  (as  to  the 
body  of  the  instrument,  but  contra  as  to  the  signature).  And  a  memoran- 
dum printed  on  the  margin  of  a  note  is  part  of  it,  Zimmerman  v.  Rote.  75 
Penna.  St.  188  (1874) ;  or  even  on  the  back,  Farmers'  Bank  v.  Ewing,  78  Kv. 
264  (1S80).  In  Pennington  v.  Baehr,  48  Cal.  565  (1874),  a  printed  fac-simile 
of  an  autograph  was  held  to  be  a  sufficient  signature  to  a  coupon.  So,  to  a 
due  bill,  Weston  v.  Myers,  33  111.  424  (1864).  In  Commonwealth  v.  Ray,  .°> 
Gray  447,  an  indictment  for  forgery  of  a  printed  railroad  ticket  was  sus- 
tained on  the  ground  that  "printing"  was  included  in  the  term  "  writing." 
And  in  Indiana  writing  is  declared  by  statute  to  include  "printing,  litho- 
graphing, or  other  mode  of  representing  words  or  letters,"  2  R.  S.,  Davis' 
Ed.,  p.  316  ch.  2  \  9.  In  Massachusetts  by  statute  of  1804  (c.  58  \  1)  all  bills, 
notes,  checks,  drafts  or  obligations  whatsoever  under  the  amount  of  five 
dollars  were  required  to  be  wholly  in  writing,  and  if  made  or  issued  after 
April  1st,  1805,  bearing  the  impression  of  types,  plates  or  printing,  they 
were  to  be  utterly  void.  This  act  was  .held  to  apply  to  notes  issued  after 
April  1st,  1805,  but  fraudulently  ante-dated  to  evade  the  statute,  even  in  the 
hands  of  bona  fide  holders,  Bay  ley  v.  Taber,  5  Mass.  286  (1809). 

3Byles  78,  167;  1  Daniel  86;  1  Edwards  I  169;  1  Parsons  23;  Story  on 
Prom.  Notes  \  11. 

Metallic  tokens  have  never  been  recognized  at  common  law  as  more  than 
simple  evidence  of  debt,  Byles  260.  In  England  tokens  made  partly  of  gold 
or  silver  formerly  made  the  issuer  liable  to  the  holder  by  53  Geo.  III.  c. 
114,  repealed  now  by  24  and  25  Vict.  c.  101;  but  if  wholly  or  in  part  of 
copper,  the  issuer  is  liable  only  to  the  original  taker  by  57  Geo.  III.  c.  46. 


62  FORMAL     REQUISITES. 

jecting  the  instrument  to  suspicion  and  endangering  the  good 
faith  of  the  holder's  title.  No  question,  however,  has  been 
raised  in  English  or  American  courts  as  to  notes  on  other 
material  than  paper  or  parchment,  and  the  doubt,  if  there  is 
one,  can  hardly  be  deemed  of  any  practical  importance. 

§  62.  Signature — Necessary. — Signature  is  the  writing  of 
a  person's  name  in  order  thereby  to  give  effect  to  the  contract 
signed.  The  signature  of  maker  or  drawer,  therefore,  as  the 
case  may  be,  is  essential  to  the  completeness  and  efficacy  of  a 
note,  bill  or  other  negotiable  instrument.1  And  even  where 
several  have  signed  as  sureties  for  a  principal,  the  note  has 
been  held  incomplete  until  signed  by  the  principal  also.2  In 
like  manner  a  note  signed  by  A.  and  delivered  to  the  payee's 
agent  under  an  agreement  that  he  was  not  to  be  holden  unless 
another  person  "signed  ahead  of  him,"  is  not  binding  on  A., 
in  the  hands  of  the  payee  at  least,  without  the  other  person's 
signature.3  And  without  the  signature  of  the  drawer  a  bill 
payable  "to  my  order,"  though  accepted,  was  formerly  held 
to  be  of  no  force  either  as  a  bill  of  exchange  or  as  a  promis- 
sory note.4  It  has,  however,  been  held  in  a  recent  case  in 
the  United  States,  that  a  promissory  note  signed  by  an  in- 

'BylesSQ;  Chittv  187 ;  1  Edwards  §  143;  Story  on  Prom.  Notes  \  34;  1 
Daniel  83;  Thol's  W.  R.  148;  Vvse  v.  Clarke,  5  Carr.  &  P.  403  (1832) ;  Tevis 
■v.  Young,  1  Mete.  199  (Ky.  1858) ;  May  v.  Miller,  27  Ala.  515  (1855).  So, 
Bills  of  Exchange  Act  1882,  45  and  46  Vict.  c.  61  g  23.  And  the  forgery  of 
acceptance  on  an  instrument  in  the  form  of  a  bill  of  exchange,  with  no  drawer 
named  and  no  drawer's  signature,  is  not  the  forgery  of  a  bill  of  exchange, 
Regina  v.  Harper,  C.  C.  Reserved,  15  Am.  L.  Rev.  553  (1881). 

2  Knight  i>.  Hurlbut,  74  111.  133  (1874).  And  he  may  set  up  such  defense 
against  one  who  held  it  until  maturity  for  the  payee  and  then  had  it  in- 
dorsed for  the  purpose  of  bringing  suit,  Stricklin  v.  Cunningham,  58  111.  293 
(1871). 

3 Miller  v.  Gambie,  4  Barb.  148  (1848).  But  such  defense  is  in  general 
unavailable  against  a  bona  fide  holder  for  value,  Smith  v.  Moberly,  10  B. 
Mon.  260  (1850).  See,  also,  the  question  of  conditional  delivery,  discussed 
infra. 

4Bvles  89;  Stcessiger  v.  S.  E.  Ry.  Co..  3  El.  &  Bl.  553  (1854) ;  Goldsmid  v. 
Hampton,  5  C.  B.  N.  S.  108  (1858).  See,  also,  McCall  v.  Taylor.  34  L.  J.  C. 
P.  3(55 ;  S.  C,  19  C.  B.  N.  S.  301  (1865).  The  contrary  is  provided  by  statute 
in  the  Argentine  Republic  (Com.  Code  1862  Art.  776  \  6) ;  and  in  Uruguay 
(Com.  Code  1865  Art.  789).  And  in  Harvey  v.  Cane,  24  W.  R.  400,  34  L.  T. 
N.  S.  61  (1876),  the  acceptor's  signature  of  a  bill  leaving  the  drawer's  name 
blank,  was  held  to  amount  to  an  authority  to  nbonafide  purchaser  for  value 
to  write  his  own  name  as  drawer. 


SIGNATURE.  63 

-dorser,  and  delivered  with  a  blank  for  the  maker's  signature, 
authorized  the  holder  to  fill  such  blank  like  any  other.1 

The  statutes  of  some  of  the  United  States  require  that 
negotiable  instruments  shall  be  signed  by  the  person  to  be 
holden  thereby.2  The  statute  of  3  and  4  Anne  c.  9  applies 
only  to  "notes  in  writing  signed  by  the  party  who  makes  the 
same."  And  in  general  the  statutes  of  foreign  States  require 
the  signature  of  the  maker  or  drawer  both  to  notes  and  bills 
of  exchange.3 

§  63.  Signature — What  Name. — In  general,  however,  un- 
less otherwise  provided  by  statute,  the  full  name  of  the  signer 
is  not  essential  to  a  good  signature.  Thus,  a  signature  by 
initials  has  been  held  sufficient.4     So,  too,  even  an  iudorse- 

^Vhitmore  v.  Nickerson.  125  Mass.  496  (1878).  And  this  may,  of  coarse, 
lip  done  by  the  payee  as  the  maker's  agent  by  express  authority,  Haven  v. 
Hobbs,  1  Vt.  238  (1828). 

2This  is  the  case  as  to  all  negotiable  instruments  in  Indiana  (1  R.  S.  1876, 
Davis'  Ed.,  c.  177  \  1) ;  and  as  to  negotiable  notes  in  Iowa  (1880  R.  C  \  2082) ; 
Nevada  (1S61  P.  L.  p.  4;  1  Comp.  L.  1873  c.5  \  9) :  New  Jersey  (1795  Pat.  Rev. 
p.  342  I  4)  ;  New  York  (1801,  1  R.  L.  151 ;  2  R.  S.,  Ed.  1875,  p  1160  §  1 )  ;  and 
as  to  orders  for  the  payment  of  money  in  Tennessee  (1762  P.  L.  c.  9  \  4  ;  1871 
C.  S.  |  1959).  As  to  bank  notes  special  provision  is  made  by  statute  in  many 
.States  for  their  signature  by  the  president  and  cashier. 

sThis  is  the  case  in  the  Argentine  Republic  (Code  of  Commerce  1862  Art. 

770  \  6);  Austria  (Austr.  Exch.  Law  of  1S50  Art.  4);  Bolivia  (Mercantile 
Code  1834  Art.  362  I  8,  as  to  bills  of  exchange  ;  and  Art.  463  £  7.  as  to  drafts) ; 
Chili  (''ode  of  Commerce  1    5  Art.  633,  as  to  bills  of  exchange;  and  Art. 

771  \  7,  as  to  drafts  and  notes);  Colombia  (Code  of  Commerce  1853  Arts. 
384,  517) ;  Ecuador  (same  as  Spain  by  act  of  1829) ;  Germany  (Gen.  Germ. 
Exch.  Law  of  1848  Art.  4)  ;  Guatemala  (as  to  notes,  Ordinances  of  Bilbao  of 
1774  c.  14  $  1) :  Holland  (Commercial  Code  of  1838  Arts.  100,  208,  210) ;  Hon- 
duras  (same  as  Guatemala) ;  Hungary  (L  iwof  1860  ch.  1  \  14);  Lower  Canada 
(Civil  Code  1867  \\  2280,  2346) ;  Mexico  i<  ode  of  Commerce  of  1854  Art.  2_,:i. 
as  to  bills  of  exchange;  Art.  447,  as  to  drafts  and  notes)  ;  Nicaragua  (Code 
of  Commerce  of  1869  Art.  211.  as  to  bills  of  exchange;  Art.  312,  as  to  drafts 
and  notes)  ;  Paraguay  (same  as  Guatemala) ;  Peru  (Code  of  Commerce  1853 
Arts.  381,  522);  Portugal  (Commercial  Code  1833  Arts.  321.  424):  Russia 
(Exch.  Law  of  1832  Art.  ."HI  I  :  Salvador  (Code  of  Commerce  1855  Arts.  381, 
510)  ;  Spain  (Code  of  Commerce  1829  Arts.  426,  563);  Sweden  and  Norway 
(Exch.  Law  of  1851  ch.  lg  1);  Switzerland  (Zurich  1805  \\  1.  2;  Basle  1863 
|  3;  Berne  1859  §  3) ;  Uruguay  I  ( 'ode  of  Commerce  1865  Art.  789)  :  Venezuela 
(Code  of  Commerce  1862  Art.  1).  The  Code  Napoleon  of  1807,  which  in 
this  respect  governs  France,  Belgium,  Greece,  Hayti,  San  Domingo,  the 
Canton  of  Geneva  and  Turkey  is  silent  as  to  the  question  of  signature  (Code 
Art.  110).  It  is  maintained,  however,  by  M.  Bedarride  that  this  is  necessarily 
implied  from  the  proof,  which  can  only  lie  made  by  proof  of  the  signature 
(Droit  Commercial.  Bk.  1  Tit.  8  Art.  42). 

♦1  Daniel  84;  1  Edwards  \  17');  l  Parsons  23;  Thomson  on  Brils  40;  Mer- 
chants' Bank  v.  Spicer,  6  Wend.  143  1831  i  ;  Palmer  v  Stephens,  1  Den.  479 
(1815i ;  Weston  v.  Myers,  33  [II.  424    1864).     But  see  Chalmers  Dig.  Art.  49  n. 


64  FORMAL     REQUISITES. 

ment  in  figures  "1,  2,  8,"  the  intention  of  the  indorser  to 
bind  himself  as  such  being  clearly  shown.1  So,  too,  a  maker 
or  indorser  may  be  bound  by  the  signature  of  an  assumed 
or  fictitious  name ;  by  a  corporate,  official,  or  partnership 
name ;  or  even  by  the  name  of  a  factory  or  of  a  steamboat, 
the  owners  being  held  as  makers.  The  reader  is  referred  for 
the  consideration  of  such  signatures  to  a  later  chapter  on 
maker's  and  drawer's  names.  It  is,  however,  advisable  in 
all  possible  cases  that  t*he  signature  should  contain  the  entire 
surname  and  at  least  the  initials  of  the  Christian  names. 
This,  or  more,  is  required  by  many  foreigu  statutes.2 

§  64.  Seal — Mark — Stamp — Printing. — And  it  seems  that 
in  the  civil  law  a  seal  is  no  equivalent  for  a  signature,  what- 
ever the  signer's  intention  may  be.3  Nor  is  a  seal  alone 
sufficient  at  common  law,4  except  perhaps  in  the  case  of  a 
corporation  note  or  bill.5  But  where  the  person  signing  can- 
not write,  his  mark  will  be  a  sufficient  signature.6     And  this 

where  the  former  of  these  Cases  is  cited  with  the  comment  that  "in  America 
the  rule  is  lax."     See,  too,  Caton  v.  Caton,  L.  R.  2  H.  L.  143  (1867). 

1  Brown  v.  Butchers'  and  Drovers'  Bank,  6  Hill  443.  But  see  Chalmer's- 
Dig.  Art.  49  n.,  as  to  extending  this  rale  to  England. 

2The  maker's  own  name  or  the  name  of  his  house  or  of  the  person  who 
signs  for  him  under  a  sufficient  power  of  attorney  is  requisite  to  a  good 
signature  in  the  Argentine  Republic  (Com.  Code  186'2  Arts.  776,  '.Mill. 

The  maker's  name  is  required  in  Austria  (Law  of  1850  Arts.  4,  96)  ;  Brazil 
(Com.  Code  1850  Arts.  354,  426) ;  Chili  (Com.  Code  1865  Art.  771.  as  to  notes 
and  drafts) ;  Germany  (Gen.  Exch.  Law  1848  Arts.  4,  96) ;  Hangar)/  (Law  of 
1860  ch.  1  \  14.  the  last  name  in  full  and  initials  at  least  of  first  name) ;  Mexico 
(Code  Com.  1854  Arts.  323,  447) ;  Guatemala,  Honduras  and  Paraguay  (Ordc. 
Bilbao  1774  ch.  14  \  1,  as  to  notes) ;  Lower  Canada  (Civ.  Code  1867  \\  2280, 
2344,  "signature  or  name") ;  Russia  (Law  of  1832  Art.  541,  "full  name  ")  ; 
Spain  (Code  Com.  1829  Art.  426 — so,  too,  Colombia,  Costa  Rica,  Ecuador). 

So,  also,  the  indorser's  name  is  required  in  Brazil  (Com.  Code  1S50  Art. 
362) ;  Colombia  (Com.  Code  1853  Art.  424) ;  Costa  Rica  (Code  Com.  1853  Art. 
414);  Ecuador  (see  Spain) ;  Germany  (Gen.  Exch.  Law  1848  Art.  12)  ;  Mexico 
(Code  Com.  1854  Art.  360)  ;  Guatemala,  Honduras  and  Paraquay  (Ordc.  Bilbao 
1774  ch.  13  I  3);  Salvador  (Code  Com.  1855  Art.  421);  Spain  (Code  Com. 
1829  Art.  467). 

3Heineccius  de  Camb.  c.  4  \  18;  Story  on  Prom.  Notes  \  35. 

4 Chalmer's  Dig.  Art.  49. 

'Chalmer's  Dig.  Art.  278;  Crouch  v.  Credit  Foncier,  L.  R.  8Q.  B.  382  (1873). 

6Byles79;  1  Daniel  84;  1  Edwards  \\  146,  170;  1  Parsons  23;  Story  on 
Prom.  Notes  \  34;  Chalmer's  Dig.  Art.  49;  George  v.  Surrey,  1  Mood.  &  M. 
516  (1830) ;  Willoughby  v.  Moulton,  47  N.  H.  205  (1S66) ;  Hilborn  v.  Alford, 
22  Cal.  482  (1866) ;  Shank  v  Butsch,  28  Ind.  19  (1867) ;  Shiver  v.  Johnson,  2 
Brev.  397  (1810)  ;•  Handyside  v.  Cameron,  21  111.  588  (1859).     But  under  the 


SEAL.  B3 

is  expressly  provided  by  statute  in  some  States;1  and  also 
by  some  foreign  statutes.2 

Printing  a  signature  with  a  hand  stamp  is  probably  suffi- 
cient,3 although  such  act  necessarily  impairs  the  means  of 
proof.  And  such  signature  for  the  Bank  of  England  by  a 
clerk  has  been  specially  legalized  by  statute.4  It  is,  however, 
more  doubtful  whether  a  signature  printed  in  the  ordinary 
manner,  without  any  manual  act  of  the  maker,  is  sufficient." 

Revised  Code  of  Alabama  the  mark  must  be  accompanied  by  the  signer's 
name  written  near  it  and  attested  bv  a  witness,  Flowers  v.  Bitting,  45  Ala. 
448  (1871). 

'In  California,  "signature  or  subscription  includes  mark,  when  the  person 
cannot  write,  his  name  being  written  near  it  and  witnessed  by  a  person  who 
writes  bis  own  name  as  a  witness  "  (1872  Polit.  Code  \  17 ;  Civ.  Code  \  5014 ; 
Code  Civ.  Proc.  \  10017;  Penal  Code  I  13007). 

In  Indiana,  "in  all  cases  where  the  written  signature  of  a  person  is  requi- 
site, either  the  proper  handwriting  of  such  person  or  his  mark  shall  be 
intended  "  (2  R.  S.  1876,  Davis'  Ed.,  p.  316  c.  2  g  9). 

In  Tennessee  orders  bv  any  one  for  the  payment  of  money  must  be  "signed 
by  his  proper  hand"  (1871  C.  S.  \  1959;  1762  P.  L.  c.  9J4). 

*A  signature  by  mark  is  invalid  unless  attested  bv  a  court  or  notary,  in 
Germany  (Gen.  Exch.  Law  1848  Art,  94);  Austria  (Law  of  1850  Art.  94) ; 
Hungary  (Law  of  1860  ch.  1  $  14 ;  but  since  1863  no  person  unable  to  write 
can  make  a  bill  of  exchange,  lb.)  The  signature  of  the  maker  "with  his 
own  name  "  is  required  in  the  Argentine  Republic  (Com.  Code  1862  Art.  776 
§  6) ;  Uruguay  (Com.  Code  1865  Art.  789).  So,  as  to  both  drafts  and  notes 
in  Chili  (Com.  Code  1865  Art.  771  §  7).  In  Honduras.  Guatemala  and  Para- 
guay (Ordc.  Bilbao  1774  c.  13  \  2)  both  name  and  residence  of  drawer  are 
requisite  to  a  bill  of  exchange,  and  full  signature  of  the  maker  to  a  promis- 
sory note  {lb.  c.  14  $  1).  In  Lower  Canada  bills  and  notes  must  contain 
"the  signature  or  name"  of  the  drawer  (Civ.  Code  1867  <jg  2280.  2344).  The 
signature  of  the  maker  or  drawer  is  required  to  be  written  by  his  own  hand 
in  Colombia  (Com.  Code  1853  Art.  384,  as  to  bills) ;  Costa  Rica  (Cod.  Com. 
1853  Art.  373) ;  Ecuador  (same  as  Spain  since  1829) ;  Mexico  (Cod.  Com.  1S54 
Art.  223;  and  as  to  drafts  and  notes,  subscription  of  maker's  or  drawer's 
name  is  requisite.  lb.  Art.  447) ;  Peru  (Cod.  Com.  1853  Art.  3S1  \  7) ;  Spain 
(Cod.  Com.  1829  Art.  426).  In  Switzerland  (Zurich  1805  \  2 ;  Berne  1859  \  3  ; 
Basle  1863  \  3,  the  signature  must  be  by  the  maker's  or  drawer's  own  hand 
or  by  attorney).  Indorsement  must  be  in  the  indorser's  own  hand  in  Brazil 
(Com.  Code  1850  Art.  362) ;  and  must  contain  his  name  and  entire  signature 
in  Honduras,  Guatemala  and  Paraguay  (Ordc.  Bilbao  1774  c.  13  \  3). 

3A  person  stamping  his  own  name  has  been  held  to  have  sufficiently  com  - 
plied  with  a  statute  requiring  a  paper  to  be  "signed,"  Bennett  v.  Brumtitt, 
L.  R.  3  C.  P.  28  (1867).  The  statute  of  Indiana  seems  to  exclude  signature 
by  stamp,  printing,  &c,  as  it  provides  that  "writing"  shall  include  printing, 
&c,  "  but  in  all  cases  where  the  written  signature  of  a  person  is  requisite 
either  the  proper  handwriting  of  such  person  or  his  mark  shall  be  intended  " 
(2  R.  S.  1876,  Davis'  Ed.  p.  316  g  9). 

♦Act  1  Geo.  IV.  c.  92  §  3. 

5 Signature  of  this, sort  has  been  held  sufficient  in  England  for  a  bill  of 
parcels,  Saunderson  v.  Jackson,  2  Bos.  &  P.  239  (1800);  Schneider  v.  Norris, 
2  M.  &  S.  286  (1814),  Lord  Ellenborough,  C.  J.,  saying  of  this  case,  "here 
there  is  a  signing  by  the  party  to  be  charged  by  words  recognizing  the  printed 

E 


66  FORMAL     REQUISITES. 

Cases  of  this  sort  are  not  likely  to  occur.  When  they  do, 
they  will  probably  fall  under  the  rule  laid  clown  as  to  other 
contracts  in  Saunderson  v.  Jackson,  and  be  upheld  if  clearly 
proved  to  be  the  act  of  the  maker. 

§  65.  Signature — Position. — The  signature  of  the  maker 
or  drawer  is  generally  at  the  bottom  of  the  instrument,  in  the 
lower  right-hand  corner.  Its  position,  however,  is  imma- 
terial, unless  the  statute  provides  to  the  contrary.1  "It  is  a 
point  settled,"  says  Chancellor  Kent,  "that  if  the  name  of  a 
party  appears  in  the  memorandum  and  is  applicable  to  the 
whole  substance  of  the  writing  and  is  put  there  by  him  or  by 
his  authority,  it  is  immaterial  in  what  part  of  the  instrument 
the  name  appears,  whether  at  the  top,  in  the  middle  or  at 
the  bottom."2  Thus,  "I,  A.  B., promise,"  &c,  is  a  sufficient 
signature,  if  so  intended.3  So,  too,  above  the  printed  name 
of  the  bank  designated  as  the  place  for  payment  of  the  bill.4 
But  where  one  signs  with  a  seal  in  the  lower  right-hand 
corner  and  the  other  without  a  seal  in  the  left-hand  corner, 
they  are  not  prima  facie  joint  makers.5 

name  as  much  as  if  he  had  suhscribed  his  mark  to  it,  and  it  is  the  same  in 
substance  as  if  he  had  written  N.  &  Co.  with  his  own  hand."  But  its  suffi- 
ciency for  bills,  notes  and  other  instruments  of  a  commercial  character  has 
been  denied  by  many  writers,  Story  on  Prom.  Notes  §  11 ;  1  Parsons  21 ; 
1  Edwards  §  168 ;  Thol  W.  R.  141 ;  and  is  not  supported  by  direct  authority  in 
England  or  in  this  country,  except  in  Pennington  v.  Baehr,  48  Cal.  565  (1874), 
where  such  signature  of  a  coupon  was  held  sufficient.  See,  too,  the  remark 
of  Sir  W.  Page  Wood,  L.  J.,  in  Ex  parte  Birmingham  Banking  Co.,  L.  R.  3 
Ch.  App.  654  (1868),  where,  however,  hand  printing  seems  to  be  referred  to. 
And  see  1  Daniel  84;  Chitty  187  n.;  Story  on  Bills  \  53. 

1  Bvles  89 ;  Chitty  187  ;  1  Daniel  S3  ;  1  Edwards  \  143;  Story  on  Bills  |  53  ; 
Thol  W.  R.  148;  Palmer  v.  Grant,  4  Conn.  389  (1822);  Quin  v.  Sterne,  26 
tin.  223  (1858) ;  Lincoln  v.  Hinzey,  51  111.  435  (1869).  So,  in  Huntv.  Adam.-. 
5  Mass.  358(1809),  where  beneath  one  maker's  signature  there  was  written 
"  I  acknowledge  myself  holden  as  surety,"  signed  by  B.,  who  was  thereupon 
held  as  a  joint  promisor  with  the  first  signer. 

2Clason  v.  Bailey,  14  Johns.  484;  Saunderson  v.  Jackson,  2  Bos.  &  P.  238  : 
Welford  v.  Beazley,  3  Atk.  503;  Knight  v.  Crockford,  1  Esp.  90;  Ogilvie  i\ 
Foljambe,  3  Mer.  53;  Chitty  187. 

3Byles  89;  Chitty  187;  1  Daniel  83;  1  Edwards  |  143;  1  Parsons  23;  Story 
on  Bills  \  53;  Taylor  v.  Dobbins,  1  Stra,  399  (1721).  The  same  is  true  of  a 
contract  under  the  statute  of  frauds,  Knight  v.  Crockford,  1  Esp.  90;  Ogilvie 
v.  Foljambe,  3  Mer.  53 ;  and  of  a  will,  Lemarque  v.  Stanley,  3  Lev.  1,  prior 
to  the  statute  requiring  subscription. 

4Turnbull  v.  Thomas,  1  Hughes  172  (1875). 

6Steininger  v.  Hoch,  39  Penna.  St.  263  (1S61). 


IRREGULAR     INDORSEMENTS.  67 

§  66.  Irregular  Indorsements. — The  maker's  or  drawer's 
signature  may  even  be  placed  on  the  back  of  the  paper.1  As 
the  back  is,  however,  the  usual  place  of  signature  of  an  in- 
dorser  or  guarantor,  a  signature  in  that  place  by  the  maker 
is  open  to  misunderstanding  and  is  differently  construed  in 
different  States.  Thus,  it  has  been  held  that  such  signature 
is  per  se  no  contract  and  depends  wholly  on  the  signer's  in- 
tention.2 And  it  has  been  held  to  be,  at  least  prima  facie, 
an  indorsement,  subject  to  be  proved  by  parol  a  contract  of 
suretyship.3  In  other  States  an  indorser  before  the  delivery 
of  the  instrument  to  the  payee  has  been  held  to  be  a  joint 
maker,4  subject,  however,  to  parol  evidence  of  a  different 
intention.5  In  other  States  he  has  been  held  to  be  a  maker 
notwithstanding  the  payee's  knowledge  that  he  intended  to 
bind  himself  as  a  surety.6     Such  signer  has  been  also  held 

'Rodocanachi  v.  Buttrick,  125  Mass.  134,  where  Lord,  J.,  says:  "It  is 
immaterial  upon  what  part  of  the  paper  a  party  places  his  name,  if  his 
purpose  in  placing  it  upon  the  paper  is  the  execution  of  the  contract,"  So, 
too,  National  Pemberton  Bank  v.  Lougee,  108  Mass.  373.  So,  too,  Palmer  v. 
Grant,  4  Conn.  3b9,  where  the  note  read  "We,  A.  and  B..  as  principals,  and 
C.  and  D.  as  sureties,  promise,"  &c,  and  C.  and  D.,  though  signing  on  the 
hack,  were  held  as  joint  makers.  See,  too,  Quin  v.  Sterne,  26  6a.  223; 
Schmidt  v.  Schmaelter,  45  Mo.  502;  National  Pemberton  Bank  v.  Lougee 
108  Mass.  371  (1871). 

2Crozer  v.  Chambers,  Spenc.  256  (1844).  The  intention  in  such  case  may 
be  proved  by  parol,  Watkins  v.  Kirkpatrick,  2  Dutch.  84  (1856). 

3Sill  v.  Leslie,  16  Ind.  236. 

4Semple  v.  Turner,  65  Mo.  696  ;  Hardy  v.  White,  60  Ga.  454;  Ackerman  v. 
Westervelt,  2  Dutch.  92  n.  (1847) ;  Chaddock  v.  Van  Ness,  6  Vroom517  (1871) ; 
Lequeer  v.  Prosser,  1  Hill  256;  Powell  v.  Thomas,  7  Mo.  440;  Lewis  v. 
Harvey,  18  76.  74;  Baker  v.  Block,  30  76.  225;  Schmidt  v.  Schmaelter,  45 
lb.  502;  Calm  v.  Dutton,  60  lb.  297;  Mathewson  v.  Sprague,  lfi.1,8;  Per- 
kins v.  Barstow,  6  76.505;  Manufacturers'  Bank  v.  Follett,  11  lb.  92;  Car- 
penter v.  McLaughlin,  12  lb.  270;  Samson  v.  Thornton,  3  Mete.  275;  Riley 
v.  Gerrish,  9  Cush.  104;  Bryant  v.  Eastman,  7  76.  Ill;  Wright  v  Morse,  9 
Gray  337  ;  Essex  Co.  v.  Edwards,  12  76.  273  ;  Clapp  v.  Rice,  13  76.  403;  Union 
Bank  v.  Willis,  8  Mete.  504;  Barrows  v.  Lane,  5  Vt.  161;  Knapp  v.  Parker 
6  76.  H42;  Flint  v.  Day,  9  76.  345;  Strong  v.  Riker,  16  76.  554.  But  see 
Bigelow  v.  Colton,  13  Gray  309;  National  Pemberton  Bank  v.  Lougee,  108 
Mass.  371  (1871).  And  in  Massachusetts  such  signer  is  now  by  statute 
entitled  like  an  indorser  to  notice  of  dishonor  (1877  Supp.  G.  S.  p.  307  c 
404— act  of  1874). 

5Sandford  v.  Norton,  14  Vt.  228;  Strong  v.  Riker,  16  76.  554  (1844) ;  Bar- 
rows v.  Lane,  5  76.  161 ;  Knapp  v.  Parker,  6  76.  642;  Flint  v.  Day,  9  76.  345. 
But  see,  contra,  Union  Bank  v.  Willis,  8  Mete.  504  (1844)  ;  Wright  v.  Morse. 
9  Gray  337  (1857). 

'Carpenter  v.  McLaughlin,  12  R.  I.  270  (1879). 


68  FORMAL     REQUISITES. 

to  be  a  surety  prima  facie,  subject  to  parol  evidence  of  a  con- 
trary intention,1  or  a  guarantor.2 

For  further  illustration  of  the  difficulties  and  ambiguities 
attending  all  signatures  on  the  back  of  a  negotiable  instru- 
ment made  for  other  purpose  than  transfer  by  indorsement, 
the  reader  is  referred  to  a  fuller  discussion  of  the  subject  in 
a  later  part  of  this  work.  Sufficient  has  been  said  here  to 
put  the  cautious  upon  their  guard  against  all  irregular  signa- 
tures on  the  back  of  such  instruments. 

Sometimes,  on  the  other  hand,  a  signature  which  should 
be  on  the  back  appears  by  inadvertence  on  the  face  of  the 
instrument  below  the  name  of  the  maker.  This  may  occur 
in  the  case  of  an  indorser3  or  a  guarantor4  without  changing 
his  intended  contract. 

In  the  absence,  however,  of  statutory  requirements  the 
maker's  signature  need  not  be  on  the  same  paper  that  con- 
tains the  instrument  signed,  but  may  be  on  another  paper  or 
"allonge"  pinned  or  otherwise  attached  to  it.5  But  it  must 
be  either  on  the  same  paper  or  on  such  "allonge."6  Where 
"subscription"  is  required,  as  it  is  by  many  foreign  statutes,7 

aGood  v.  Martin,  5  Otto  90  (1877).  So,  by  statute  in  North  Carolina,  Batt. 
Rev.  c.  10  \  10;  Hoffman  v.  Moore,  82  N.  C.  313  (1880).  Joint  principal  or 
surety  according  to  intention,  Baker  v.  Robinson,  63  N.  C.  191  (1869). 

2  Rivers  v.  Thomas,  1  B.  J.  Lea  649  (1878) ;  Huntington  v.  Harvey, 4  Conn. 
128  (1821).  So  of  a  non-negotiable  note,  Richards  v.  Warring,  1  Keyes  576 
(1864),  affirming  39  Barb.  42. 

3  Haines  v.  Dubois,  1  Vroom  259  (1863). 
4Cason  v.  Wallace,  4  Bush  3S8  (1868). 

5Heister  v.  Gilmore,  5  Phila.  62  (1862).  So,  too,  in  Sweden  and  Norway  an 
indorsement  bv  express  statute  (Cod.  Com.  1851  c.  1  §  13) ;  and  in  Switeer- 
land  (Berne  1859  \  11 ;  Basle  1863  §  11)  ;  Germany  (Exch.  Law  1848  Art.  11) ; 
Austria  (Exch.  Law  1850  Art.  11).  But  in  Paraguay,  Honduras  and  Guate- 
mala it  must  be  on  the  back  (Ordc.  Bilbao  1774  c.  13  \  3). 

6 French  v.  Turner,  15  Ind.  59. 

7The  maker's  or  drawer's  name  must  be  "subscribed"  in  Austria  (Law 
of  1850  Art.  4;  but  in  Germany  and  in  Austria  the  word  has  been  construed 
to  have  no  relation  to  the  place  of  signature,  Thol  W.  R.  148  n.) ;  Bolivia 
(Com.  Code  1834  Art.  362  §  8,  as  to  bills  ;  Art.  463,  as  to  drafts) ;  Chili  (Com. 
Code  1865  Art.  633,  as  to  bills;  Art.  767,  as  to  drafts  and  notes)  ;  Colombia 
(Com.  Code  1853  Art.  384,  as  to  bills  ;  Art.  517,  as  to  drafts  and  notes) ;  Costa 
Rica  (Code  Com.  1853  Art.  373.  as  to  bills;  Art.  510,  as  to  drafts  and  notes)  ; 
Germany  (Gen.  Exch.  Law  1848  Art.  4  \  5,  Art.  96);  Holland  (Code  Com. 
1838  Arts.  100,  208,  210) ;  Hungary  (Law  of  1860  c.  1  \  14) ;  Ecuador  (same 
as  Spain)  ;  Mexico  (Cod.  Com.  1854  Art.  223,  as  to  bills  ;  Art.  447,  as  to  drafts 
and  notes);  Nicaragua  (Cod.  Com.  1869  Art.  241,  as  to  hills:  Art.  261,  as  to 
indorsements;  Art.  312.  as  to  drafts)  ;  Peru  (Com.  Code  1853  Art.  381,  as  tc 


SIGNATURE.  69 

it  is  apparently  necessary  that  the  maker  or  drawer  should 
place  his  signature  on  the  paper  containing  the  instrument 
and  at  the  bottom  of  it. 

§  67.  Signature — Pleading — Evidence. — In  declaring  upon 
a  note  or  bill  the  "signing"  of  it  need  not  be  averred  in 
precise  words,  but  it  is  a  sufficient  averment  that  A.  "made" 
his  certain  note,  t&c1  The  execution  must,  however,  be 
proved  as  a  fact.2  In  general  there  is  no  subscribing  witness 
to  make  such  proof.  If  there  be  one,  it  may  be  other- 
wise proved  in  case  of  the  witness'  absence,  forgetfulness  or 
incapacity.3  Moreover  the  act  of  signing  need  not  be  specific- 
ally proved,  but  delivery  by  the  maker,  and  probably  other 
actions  of  his,  are  sufficient  evidence  of  his  signature.4 

So,  too,  the  maker's  own  admission  is  sufficient  proof  of 
his  signature.5  But  such  admission  must  clearly  identify  the 
instrument.  Thus  an  admission  of  "a  note  to  A."  is  not 
sufficient.6  Nor  is  the  mere  failure  of  the  maker's  executor 
to  deny  the  signature,  on  presentation  of  the  note  to  him, 
equivalent  to  an  admission.7  But  in  New  Hampshire  at 
least,  by  present  rules  of  pleading,  the  want  of  an  affidavit 
of  denial  is  presumably  an  admission.8  An  admission  of  his 
signature  made  by  the  maker  to  &  bona  fide  purchaser  before 

bills;  Art.  522,  as  to  drafts  and  notes) ;  Portugal  (Cod.  Com.  1833  Art.  321, 
defining  a  bill  as  "an  instrument  by  which  the  subscriber,"  &e.) ;  Russia  (Cod. 
Com.  1832  Art.  541)  ;  Salvador  (Cod.  Com.  1855  Art.  510)  ;  Spain  (Code  Com. 
1829  Art.  426,  as  to  bills :  Art.  563,  as  to  drafts  and  notes)  ;  Sweden  and  Nor- 
way (Cod.  Com.  1851  c.  1  \  1) ;  Switzerland  (Zurich  1805  I  1;  Berne  1859  \  3; 
Basle  1863  \  3) ;  Uruguay  (Cod.  Com.  1865  Art.  789,  as  to  drafts);  Venezuela 
(Cod.  Com.  1862  Art.  1,  as  to  bills). 

lElliotv.  Cooper,  2  Ld.  Raym.  1376  (1725) ;  Smith  v.  Jarves,  lb.  1484  (1727) ; 
Erskine  v.  Murray,  lb.  1542. 

2Colbath  v.  Jones,  28  Mich.  280  (1873). 

sQuimby  v.  Buzzell,  16  Me.  470  (1840). 

*Melvin  v.  Hodges,  71  111.  422  (1874). 

5Hilborn  v.  Alford,  22  Cal.  482  (1866);  Nichols  v.  Allen,  112  Mass.  23 
(1873) ;  Willoughby  v.  Monlton,  47  N.  H.  205;  Hall  v.  Phelps,  2  Johns.  451 
(1807) ;  Mauri  v.  Heffernan,  13  Johns.  57,  74  (181(5)  ;  Casco  Bank  v.  Keene, 
53  Me.  103  (18(55) ;  Fall  River  Nat.  Bank  v.  Buftington,  97  Mass.  498  (1867) ; 
Hodges  v.  Eastman,  12  Vt.  358  (183!)).  Although  made  to  a  third  person, 
Smith  v.  Witton,  69  Mo.  458  (1879). 

•Shaver  v.  Ehle,  16  Johns.  201  (1819);  Palmer  v.  Manning,  4  Den.  131 
(1847).     See,  too,  Smith  v.  Witton,  69  Mo.  458  (1879). 

'Filley  v.  Angell,  102  Mass.  07  (1869). 

*  Great  Falls  Bank  v.  Farmington,  41  N.  H.  32  (under  Rules  of  1860  No.  44) 


70  FORMAL     REQUISITES. 

delivery  of  the  note,  estops  him  from  all  subsequent  denial.1 
And  like  effect  has  been  given  to  an  admission  made  to  an 
indorsee  even  after  delivery,  but  before  maturity.2 

Perhaps  proof  by  means  of  witnesses  acquainted  with  the 
maker's  handwriting  is  the  most  usual  and  convenient 
method,  if  there  is  no  evidence  of  the  maker's  actions  or 
admissions.3  Evidence  of  the  maker's  handwriting  may 
likewise  be  obtained  from  comparison  of  the  signature 
to  be  established  with  other  signatures  already  admitted 
or  proved  in  the  case  to  be  genuine;4  but  not  by  comparison 
with  other  disputed  papers  not  in  the  case.5  In  the  absence 
of  a  subscribing  witness,  his  handwriting  may  be  proved  as 
in  other  cases.6 

§  68.  Attestation — Statutes. — Bills  and  notes  do  not  re- 
quire an  attesting  witness  and  it  is  not  customary,  nor  in 
general  desirable,  to  have  them  witnessed.  Even  if  a  note 
is  signed  by  a  mark  a  witness  is  unnecessary  (however  de- 
sirable it  might  then  be),  unless  required  by  statute.7 

In  some  of  the  States  a  distinction  is  made  by  statute  be- 
tween attested  promissory  notes  and  others,  the  former  being 
excepted  from  the  six-year  limitation  of  actions  and  made 
actionable  for  a  longer  period.8  To  bring  a  note  within 
these  statutes  the  witness  must  be  a  legally  competent 
witness  at  the  date  of  the  attestation.9     And  one  who,  on 

1CaSco  Bank  v.  Keene,  53  Me.  103  (1865). 

JFall  River  Nat.  Bank  v.  Buffi ngton,  97  Mass.  498  (1867). 

3  George  v.  Surrey,  1  Mood.  &  M.  516  (1830) ;  Chaffee  v.  Taylor,  3  Allen 
598  (1862). 

*  First  Nat.  Bank  of  Houghton  v.  Rohert,  41  Mich.  709  (1879) ;  Horner  v. 
Wallis,  11  Mass.  309  (1814);  Hardy  v.  Norton,  66  Barb.  527  (1873);  contra, 
Hanley  v.  Gandy,  38  Tex.  211  (1866). 

6Vinton  v.  Peck,  14  Mich.  287  (1866). 

•Shiver  v.  Johnson,  2  Brev.  397  (1810). 

7Shank  v.  Butsch,  28  Ind.  19  (1867).  The  Alabama  statute  requires  attes- 
tation in  such  case.  Flowers  v.  Bitting,  45  Ala.  448  (1871) ;  and  attestation 
by  two  witnesses  for  a  transfer  of  note  l>y  a  married  woman,  Walker  v. 
Struve,  70  lb.  167  (1881) ;  1876  Code  \  2707. 

8 Maine,  R.  S-.  1883  c.  81  g  86 ;  Massachusetts,  1882  Pub.  Stats,  c.  197  §  6 ;  c. 
133  I  5  ;  Vermont,  1880  Rev.  L.  \  961.  The  Massachusetts  acts  only  apply  to 
suits  by  the  payee  or  his  personal  representative,  or  a  purchaser  from  such 
representative  under  order  of  the  probate  court. 

•Jenkins  v.  Dawes,  115  Mass.  599  (1874), 


ATTESTATION.  71 

receiving  a  note  as  the  agent  of  the  payee,  signs  it  in  the 
usual  place  for  attestation  without  request  or  explanation, 
has  been  held  not  to  be  an  attesting  witness.1  Neither  is  an 
acknowledgment  of  a  note  indorsed  on  it  and  witnessed 
within  the  statute;2  nor  a  surety's  undertaking  written  after 
and  without  knowledge  of  the  attestation  of  the  maker's 
signature.3  So,  one  of  several  joint  makers  whose  signature 
had  not  been  really  seen  or  attested  by  the  witness  may  avail 
himself  of  the  statute  of  limitations  even  against  a  bona  fide 
holder,  who  supposed  all  the  signatures  were  attested.4 

If  a  note  is  attested  and  therefore  within  the  exception  of 
the  statute  of  limitations  it  has  been  held  that  this  should  be 
specially  pleaded.6  But  it  need  not  appear  that  the  attesta- 
tion was  in  any  particular  position  on  the  paper.  Thus,  a 
renewal  indorsed  and  attested  on  the  back  of  a  note  is  within 
the  statutory  exception.6  And  the  signature  of  a  witness 
written  above  the  date  instead  of  at  the  foot  of  a  note  may 
be  shown  to  have  been  intended  for  an  attestation  of  the  note.7 
But  it  has  been  questioned  whether  an  attestation  on  the  face 
of  a  bill  is  sufficient  for  a  signature  on  the  back.8  And  it 
has  been  held  that  the  sufficiency  of  an  attestation  written 
four  years  after  the  note  was  signed,  at  the  maker's  request 
and  on  his  acknowledgment  of  his  signature,  is  a  question 
for  the  jury  to  determine.9 

In  England  the  statute  until  1863  required  bills,  notes  and 
drafts,  other  than  checks  on  bankers,  and  the  indorsement 
of  them  to  be  attested,  if  drawn  for  less  than  five  pounds  and 
more  than  one  pound.10 

1  Farnsworth  v.  Rowe,  33  Me.  263  (1851). 
2 Gray  v.  Bowden,  23  Pick.  282  (1839). 
8  Walker  v.  Warfield,  6  Mete.  466  (1S43). 
4 Trustees  of  Solon  v.  Rowell,  49  Me.  330  (1860). 
5Carpenter  v.  McClure,  38  Vt.  375  (1866). 
6  Daggett  v.  Daggett,  124  Mass.  149  (1878). 
'Warren  v.  Chapman,  115  Mass.  584  (1874). 
8  Black  v.  Rogers,  68  Me.  574  (1878). 
9Swazey  o.  Allen,  115  Mass.  594  (1874). 

°17  Geo.  III.  c.  30  temporarily  repealed  in  1863  by  26  and  27  Viet.  C.  105, 
41  anil  42  Vict,  c  70.     Repealer  continued  from  year  to  year  to  present  time. 


72  FORMAL     REQUISITES. 

§  69.  Proof  by  Attesting  Witness. — If  there  is  an  attesting 
witness,  he  must,  in  general,  be  called  to  prove  the  instru- 
ment ;l  especially  in  the  case  of  a  sealed  note.2  This  is,  of 
course,  dispensed  with  if  the  witness  is  dead,3  or  has  become 
insane,4  or  cannot  be  found  in  the  State.5  In  all  such  cases 
the  handwriting  of  the  witness  may  be  proved.  So,  too,  if 
the  witness  cannot  tell  whether  he  signed  as  witness  or  not;6 
or  if  he  did  not  see  the  maker  sign;7  or  only  saw  one  of 
several  makers  sign  the  paper.8  Or  if  the  maker  has  ad- 
mitted his  signature  this  may  be  proved  and  the  subscribing 
witness  not  called.9 

'Stone  v.  Metcalf,  1  Stark.  53.  But  now  such  witness  need  only  be  called 
in  England  where  the  attestation  is  necesaarv  to  the  validity  of  the  instru- 
ment, 17  and  18  Vict.  c.  125  g  26. 

2  January  v.  Goodman,  1  Dall.  208. 

8  Wilson  v.  Whittall,  1  B.  &  Aid.  22  n. 

'Carrie  v.  Child,  3  Campb.  283. 

6Shiver  v.  Johnson,  2  Brev.  397;  Dunbar  v.  Warden,  13  N.  H.  311  (1842). 
And  this  is  true,  although  the  note  be  signed  by  the  maker's  mark,  Bussey 
v.  Whitaker,  2  Nott.  &  McC.  374  ;  Shiver  v.  Johnson,  supra. 

6Quimby  v.  Buzzell,  16  Me.  470  (1840). 

'Lemon  v.  Dean,  2  Campb.  636  n. 

8Tuten  v.  Stone,  12  Rich.  448  (1860). 

9 Hall  v.  Phelps,  2  Johns.  451 ;  Williams  v.  Floyd,  11  Penna.  St.  499  (1849). 
But  see  contra  in  the  case  of  a  sealed  note,  Fox  v.  Reil,  3  Johns.  451.  Nor 
will  the  admission  by  the  maker  that  he  had  given  a  note  to  the  payee,  the 
note  in  suit  not  having  been  produced  and  being  in  fact  forged,  render  it 
unnecessary  to  call  the  subscribing  witness,  Shaver  v.  Ehle,  16  Johns.  291. 


SEALED     INSTRUMENTS     NOT     NEGOTIABLE.  73 


II.    SEALED    INSTRUMENTS. 

70.  Sealed  Instruments  not  Negotiable. 

71.  Civil  Law — Statutes. 

72.  What  is  a  Seal — Scrolls — Stamps. 

73.  Evidence — Presumptions. 

74.  Corporation  Seals — Coupon  Bonds. 

§  70.  Sealed  Instruments  not  Negotiable. — The  Statute  of 
Queen  Anne,  to  which  promissory  notes  owe  their  nego- 
tiability, did  not  extend  to  instruments  under  seal.  Sealed 
notes,  therefore,  as  well  as  sealed  bills  and  corporation  and 
other  bonds,  were  formerly  held  to  be  non-negotiable.1  And 
this  rule  has  been  generally  recognized  in  the  United  States, 
except  where  it  is  changed  by  statute.2  An  indorsement  or 
guaranty  under  seal  will  not,  however,  affect  the  negotiable 
character  of  a  bill  or  note  not  under  seal.3  The  addition  of 
a  seal  is  at  common  law  a  material  alteration,  as  it  affects 
among  other  things  the  statutory  limitation;4  but  if  added 
by  consent,  after  the  paper  has  been  barred  by  the  statute  as 
a  simple  contract,  the  statute  will  be  extended  to  the  limit 
fixed  for  specialties.5 

^vles  5:  Chitty  190;  1  Edwards  \  296;  1  Daniel  37;  1  Parsons  26;  Story 
on  Bills  \  62;  Story  on  Prom.  Notes  \  55;  Glyn  v.  Baker,  13  East  509.  But 
see  Buller  v.  Crips,  6  Mod.  29. 

2  Brown  v  Lockhart,  1  Mo.  289  (1823);  Conine  v.  Junction,  &c,  R.  R.,  3 
Houst.  288  (1866) ;  Clark  v.  Farmer's  Mfg.  Co.,  15  Wend.  256  (1836) ;  Foster 
v.  Floyd,  4  McCord  159  (1827) ;  Prevail  v.  Fitch,  5  Whart.  325  (1840) ;  Hall  v. 
Hickman,  2  Del.  Ch.  318  (1864) ;  Heifer  v.  Aklen,  3  Minn.  332  (1859) ;  Brown 
v.  Jordhal,  19  Cent.  L.  J.  38  (Minn.  1884) ;  Merritt  v.  Cole,  9  Hun  9S;  S.  C, 
14  lb.  324  (1878) ;  January  v.  Goodman,  1  Dall.  208  (1787) ;  Parker  v.  Ken- 
nedy, 1  Bay  398  (1794);  Sayre  v.  Lucas,  2  Stew.  259  (Ala.  1830);  Sidle  v. 
Anderson,  45  Penna.  St.  464  (1863) ;  Tucker  v.  English,  2  Speers  673  (1844); 
Rawson  v.  Davidson,  49  Mich.  607  (1883);  Barden  v.  Southerland,  70  N.  C. 

528  (1874) ;  Murrell  v.  Jones,  40  Miss.  565  (1866) ;  Lewis  v.  Wilson,  5  Blackf. 
369  (1840) ;  Osborn  v.  Kistler,  35  Ohio  St.  99  (1878).  And  it  has  been  held 
that  the  indorsee  of  such  a  note  cannot  sue  on  it  although  the  seal  is  not 
referred  to  in  the  note,  Conine  v.  Junction,  &c,  R.  R.,  supra.  But  a  note 
under  a  corporation  seal  was  held  to  be  negotiable  in  South  Carolina  in  1873, 
Central  Nat.  Bank  v.  R.  R.  Co.,  5  So.  Car.  156.  As  to  corporation  bonds,  nego- 
tiable in  form,  see  infra. 

3Ege  v.  Kyle,  2  Watts  222  (1834) ;  Rand  v.  Dovey,  83  Penna.  St.  280  (1876), 
this  indorsement  being  under  a  corporate  seal. 

♦Davidson  v.  Cooper,  11  M.  &  W.  778,  affirmed  13  16.343;  Vaughan  v. 
Fowler,  14  So.  Car.  355  (1880).  So,  too,  United  States  v.  Linn,  1  How.  ]i)4 
(1843).  if  properly  pleaded.     But  see,  contra,  Fullerton  v.  Sturges,  4  Onio  St. 

529  (185.-)). 

BHanger  v   Dodge,  24  Ark.  205  (1866). 


74  FORMAL     REQUISITES. 

Without  being  fully  "negotiable"  sealed  bills  have  been 
held  to  be  transferable  by  delivery,  if  payable  to  bearer.1 
But  the  transfer,  whether  by  delivery,  indorsement,  or  other 
form  of  assignment,  is  subject  to  existing  equities.2  And  the 
assignor  or  indorser  is  not  liable  to  his  assignee  or  a  subse- 
quent holder  without  an  express  contract  to  that  effect.3 

Neither  is  a  sealed  note  entitled  to  grace  like  one  that  is 
without  seal.4  And  it  does  not  fall  within  the  statutes 
authorizing  joinder  in  one  suit  of  the  maker  and  indorser 
of  commercial  paper  ;5  nor  within  the  act  of  congress  of  1875 
regulating  the  jurisdiction  of  the  Federal  Courts  over  "prom- 
issory notes  negotiable  by  the  law  merchant."6  In  the  case 
of  a  sealed  note  a  blank  indorsement  can  be  explained  by 
parol  evidence,  unlike  the  indorsement  of  a  negotiable  note 

lMerritt  v.  Cole,  9  Hun  98;  S.  C,  14  lb.  324;  Porter  v.  McCollum,  15  Ga. 

528  (1854).  But  in  Alabama  by  statute  indorsement  is  necessary  to  a  transfer, 
Sayre  v.  Lucas,  2  Stew.  259  (Ala.  1830).  And  so  in  Obio,  Avery  v.  Latimer, 
14  Ohio  542,  by  an  early  statute,  Swan  St.  587  (1846).  But  to  the  effect  that 
a  bond  cannot  be  made  payable  to  bearer,  see  Clarke  v.  City  of  Janesville, 
1  Biss.  C.  C.  98  (1856) ;  Marsh  v.  Brooks,  11  Ired.  409  (1850).  The  contrary 
is  now  well  established,  however,  McCoy  v.  Washington  Co.,  3  Wall.  Jr.  381. 

2 Hall  v.  Hickman,  2  Dei.  Ch.  318  (1864);  Hill  v.  Caillovel,  1  Ves.  Sr.  122 
(1748) ;  Matthews  v.  Walwyn,  4  Ves.  118  (1798) ;  Coles  v.  Jones,  2  Vern.  692 
(1715);  Turton  v.  Benson,  lb.  765  (1718);  Clute  v.  Robison,  2  Johns.  595, 
612,(1807);  Barrow  v.  Bispham,  6  Halst.  116  (1829);  Shannon  v.  Marselis, 
Saxt.  424  (1831);  Wheeler  v.  Hughes,  1  Dall.  23  (1776);  Hopkins  v.  R.  R. 
Co.,  3  Watts  &  S.  410  (1842).  But,  contra,  as  to  his  immediate  indorsee, 
Heifer  v.  Alden,  3  Minn.  332  (1859). 

3Frevall  v.  Fitch,  5  Whart.  325  (1840) ;  Heifer  v.  Alden,  3  Minn.  332  (1859) ; 
Parker  v.  Kennedy,  1  Bay  398  (1794);  Pratt  v.  Thomas,  2  Hill  654  (S.  C. 
1835);  Tucker  v.  English,  2  Speers  673  (1844);  Dilts  v.  Trimmer,  Penn.  951 
(1812  N.  J.) ;  Garretsie  v.  Van  Ness,  lb.  20  (1806) ;  Boylan  v.  Dickerson,  lb. 
430  (1808) ;  Parks  v.  Duke,  2  McCord  380  (1823). 

By  statute,  however,  the  assignor  is  liable  in  case  of  due  diligence  on  the 
part  of  the  assignee  in  Colorado  (1877  G.  L.  Ill  \  94) ;  District  of  Columbia 
(Md.  Laws  1763  c.  23  g  9) ;  Idaho  (1875  R.  L.  648  §  4) ;  Illinois  (1880  R.  S.  c. 
98  g  7) ;  Indiana  (1876  R.  S.  c.  177  g  4) ;  Iowa  (1880  R.  C.  g  2088) ;  Maryland 
(1763  P.  L.  c.  23  g  9;  1878  R.  C.  595  g  48) ;  Mississippi  (1871  R.  C.  \  2228) ; 
Nebraska  (1873  G.  S.  c.  32  g  2) ;  Ohio  (1830  P.  L  217  g  2;  1880  R.  S.  g  3172) ; 
Virginia  (1873  Code  c.  141  g  18) ;  and  West  Virginia  (1879  R.  S.  c.  12  g  15). 

4Skidmore  v.  Little,  4  Tex.  301  (1849). 

5 Mann  v.  Sutton,  4  Rand.  253  (1826). 

6Coe  v.  Cayuga  Lake  R.  R.,  8  Fed.  Rep.  534,  Blatchford,  J.,  saying :  "The 
instrument  without  the  corporate  seal  will  be  a  promissory  note  negotiable 
by  the  law  merchant,  and  the  instrument  with  the  corporate  seal  will  be  a 
specialty  and  not  a  promissory  note  negotiable  by  the  law  merchant.  If  the 
capacity  to  make  the  instrument  without  as  well  as  with  the  seal  exists,  it 
cannot,  when  made  with  the  seal,  be  a  promissory  note  negotiable  by  the 
law  merchant." 


CIVIL    LAW.  tO 

not  under  seal.1  But  in  New  Jersey  it  has  been  held,  that 
a  sealed  bill  cannot  be  transferred  at  all  by  a  blank  indorse- 
ment.2 And  the  drawer  of  a  sealed  bill  is  not  entitled  to  be 
discharged  by  the  holder's  want  of  due  diligence.3 

§  71.  Civil  Law — Statutes. — A  seal  is  neither  expressly 
required  nor  prohibited  by  statute  in  any  European  or 
American  State.4  The  civil  law  makes  no  distinction  be- 
tween sealed  and  unsealed  bills;5  nor  is  such  distinction 
made  by  the  statutes  of  any  foreign  State.  In  some  of  the 
United  States  the  distinction  is  done  away  by  statute.6  In 
these  States  the  affixing  of  a  seal  at  the  time  of  executing 
a  note  or  bill  may  be  regarded  as  mere  surplusage.  And 
the  sealed  bill,  if  in  other  respects  negotiable,  is  governed  by 
the  rules  of  commercial  paper.7  By  statute  sealed  bills  and 
bonds  are  made  negotiable  in  many  States.8     In  other  States 

1  Gist  v.  Drakely,  3  Gill  330  (1844). 

2Speer  v.  Post,  Penn.  1032  (1813). 

3  Force  v.  Craig,  2  Halst.  330  (1823). 

*Bnt  in  Mississippi  the  statute  formerly  restricted  the  character  and  effect 
of  promissory  notes  to  promises  in  writing  "not  under  seal"  (1871  Rev. 
Code  c.  47  |  2227).  This  was  omitted  in  the  Revised  Code  of  1S80.  Sealed 
notes,  however,  are  assignable  subject  to  equities,  lb.  I  2228;  Murrell  v. 
Jones,  40  Miss.  565;  Lamkin  v.  Nye,  43  lb.  241 ;  Smith  v.  Clopton,  48  lb.  66. 

5 Story  on  Prom.  Notes  $  55. 

6  Private  seals  are  abolished  in  Kansas  (1879  Com  p.  L.  c.  21  ?  6),  corporate 
seals  excepted;  Nebraska  (1873  Gen.  Stats,  c.  71  \  1);  and  Tennessee  (1871 
Comp.  Stats.  I  1804)  Also  in  Arkansas  by  the  constitution  of  1868  (Art. 
XV.  \  16.  As  to  the  effect  of  this  provision  on  the  statute  of  limitations, 
see  Dyer  v.  Gill,  32  Ark.  410.  All  distinction  between  sealed  and  unsealed 
instruments  is  done  away  in  California  (Civ.  Code  1872  §  6629;  Code  Civ. 
Proc.  1872?  11932);  Indiana  (2  Rev.  Stats.,  Davis'  Ed.,  1876  p.  140  \  273); 
Kentucky  (1877  Gen.  Stats,  c,  22  §  2;  1812  1  Stat.  L.  343;  Norton  v.  Allen,  3 
A.  K.  Marsh.  284  (1821) ;  Maxwell  v.  Gundrum,  10  B.  Mon.286  (1850)  |  :  Mich- 
igan (C.  L.  l\  5367,  5384;  McKinney  v.  Miller,  19  Mich.  142.  151  (1869)); 
Mississippi,  so  far  as  to  give  sealed  lulls  a  commercial  character  (Murrell  v. 
Jones,  supra,  and  other  notes  to  this  section) ;  New  York  (1S75  1  R.  S.  76S  1 1 ; 
2/6.406  I  77;  Anthony  v.  Harrison,  14  Hun  198,  affirmed  74  X.  Y.  613); 
Ohio  (Swan.  Stats.  587 ;  1830  P.  L.  217  \  1;  1880  R.  S.  \\  3171,  3172;  Bain  v. 
Wilson,  10  Ohio  St.  14  (1859)  ;  Bank  of  St,  Clairsville  v.  Smith,  5  Ohio  222 
(1831))  ;  and  Texas  (1858  Pasch.  Dig  Art.  50S7;  Courand  v.  Vollmer,  31  Tex. 
397  (1868)). 

7 Bank  of  St.  Clairsville  v.  Smith,  5  Ohio  222  (1831). 

"This  is  the  ca.se  in  California  (1872  Civ.  Code  \\  8095,  8096;  and  see  note 
6  supra) ;  Colorado  (1877  Gen.  L.  110  \  91)  ;  Dakota  (1877  Rev.  Code  |  1829); 
Illinois  (1880  Rev.  Stats.,  Html's  Ed.,  c.  98  \\  3,  4;  1845  Rev.  Stats.  384  \\  3, 
4);  Kansas  (1879  Comp.  L.  c.  14  g  1) ;  Massachusetts  (1859  G  S.  c.  53  §6); 
Missouri  (1  R  S.  1879  c.  10  \  547) ;  Nebraska  (1873  G.  S.  c.  32  §  1),  if  payable 
to  "order  "  or  "  bearer  ';  Nevada  (1873  C.  L.  c.  5  \  9),  as  to  "all  notes  in 


76  FORMAL     REQUISITES. 

such  instruments  are  made  assignable  at  law,  subject  how- 
ever to  equities  existing  against  the  assignor.1     And  in  some 

writing."  In  New  York  (2  Rev.  S.,  6th  Ed.,  1875  p.  1160  g  1),  "all  notes  in 
writing"  are  made  negotiable.  In  Ohio  bonds  are  made  negotiable,  if  pay- 
able to  "  order  "  or  "  bearer  "  (1830  P.  L.  217  ft  1,  2 ;  1880  R.  S.  U  3171,  3172), 
but  by  indorsement  only,  Osborn  v.  Kistler,  35  Ohio  St.  99  (1878) ;  Cushnian 
v.  Welsh,  19  lb.  536  (1869) ;  Avery  v.  Latimer,  14  Ohio  542  (1846). 

In  Delaware  specialties  "payable  to  any  person  or  order  or  assigns"  are 
made  assignable,  if  attested  by  two  witnesses,  and  the  assignee  may  bring 
suit  in  bis  own  name  (Rev.  Code  1852,  amended  1874,  c.  63  \  8)  But  the 
indorsement  of  a  sealed  instrument  gives  the  indorsee  no  right  to  sue, 
Conine  v.  Junction,  &c,  R.  R.,  3  Houst.  288  (1866). 

In  the  District  of  Columbia  instruments  under  seal  are  assignable,  so  that 
the  assignee  may  sue  in  his  own  name,  and  the  assignor  is  liable  thereon  as 
a  surety  (Md.  Stat.  1763  c.  23  §  9).  _ 

In  Georgia  "  all  bonds,  specialties  or  other  contracts  in  writing  for  the 
payment  of  money  or  any  articles  of  property  are  negotiable  by  indorse- 
ment or  written  assignment  in  the  same  manner  as  bills  of  exchange  and 
promissory  notes  "  (Code  1873  \  2776). 

In  Maryland  sealed  instruments  for  the  payment  of  money  are  assignable, 
subject  to  defense,  the  assignor  being  only  liable  in  case  of  due  diligenceXMi 
the  part  of  the  assignee  (1878  Rev.  Code  591  \\  41-48;  1763  P.  L.  c.  23  g  9). 

In  Massachusetts  it  is  enacted  that  "  bonds  and  other  obligations  for  the 
payment  of  money  purporting  to  be  payable  to  the  bearer  or  some  pe«rsou 
designated  or  bearer,  or  payable  to  order  issued  by  any  corporation  or  joint 
stock  company,  shall  be  negotiable  in  the  same  manner  and  to  the  same 
extent  as  promissory  notes  "  (1859  G.  S.  c.  53  §  6). 

In  Mississippi  it  was  formerly  provided  that  notes  should  be  "not  under 
seal"  (1871  Rev.  Code  I  2227).  This  has  been  omitted,  however,  in  the  cor- 
responding section  of  the  statute  now  in  force  (1880  Rev.  Code  c.  40  \  1123). 

In  Nebraska  bonds  are  made  negotiable  in  like  manner  with  promissory 
notes  and  hills  of  exchange,  foreign  or  inland,  and  subject  to  like  require- 
ments (1373  G.  L.  c.  32  §  1 ;  1866  R.  S.  c.  27). 

As  to  municipal  bonds  there  is  in  New  York  by  act  of  1870  (2  R.  S.,  Ed. 
1875  p.  406  \  13)  provision  for  a  special  indorsement  to  put  an  end  to  their 
negotiable  character. 

In ,  North  Ca/rolina  negotiable  instruments  may  be  with  or  without  seal 
(1873  Bat.  Rev.  c.  10  21);  Pate  v.  Brown,  85  N.  C.  166  (1881b 

In  Ohio  bonds  are  negotiable  like  promissory  notes  and  bills,  inland  and 
foreign  (18S0  R.  S.  g  3171 ;  1830  P.  L.  p.  217  I  1). 

In  Pennsylvania  bonds,  specialties  and  notes  were  made  assignable  subject 
to  equities  by  the  act  of  1715  (1  Sm.  90 ;  1872  Purd.  Dig.  p.  161  \  1). 

In  Tennessee  bills,  bonds  and  notes  for  money  only  are  made  negotiable, 
whether  sealed  or  not  (17S6  P.  L.  o.  4  §  1 ;  1871  C.  L.  \  1957). 

lThis  is  the  case  in  Alabama  (1876  Code  2  2100);  Arkansas  (1874  Rev. 
Stats.  l\  563,  565) ;  Delaware  (1852  Rev.  Code,  Ed.  1874,  c.  63  §  8) ;  District  of 
Columbia  (Dig.  L.  1863;  Laws  Md.  1763  c  23  §  9) ;  Florida  (1870  Code  Civ. 
Proc.  Part  II.  Tit.  III.  \\  62,  63) ;  Georgia  (1873  Code  \  2244;  but  see  §  2776) ; 
Indiana  (1876  R.  S.,  Davis'  Ed.,  vol.  2  p.  135  \  6 ;  c.  177  \  3),  applicable  to  all 
bills  and  notes;  Iowa  (1880  Rev.  Code  \\  2084,  2546);  Kansas  (1879  Oomp. 
L.  c.  80  \  27),  as  to  non-negotiable  instruments;  Kentucky  (1877  Gen.  Stats, 
c  22  2  6) ;  Maryland  (1878  Hev.  Code  594  \  43)  ;  Michigan  (1871  Oomp.  L. 
1675  §  5),  as  to  non-negotiable  bonds  and  notes;  Minnesota  (1878  G.  S.  c.  66 
I  27) ;  Mississippi  (1871  Rev.  Code  \  222S) ;  see  also,  note  4,  p.  75 ;  New  Jersey 
(1797  Pat.  Rev.  254;  1863  P.  L.  2(37;  1874  Rev.  850)  ;  New  York  (2  Rev.  S  , 
•6th  Ed.  1875,  480  \  112),  excepting  the  bona  fide  holder  of  negotiable  bills 
and  notes.  North  Carolina  (1873  Bat.  Rev.  c.  10  \  1)  makes  such  instruments 
subject  to  assignment  and  suit  like  inland  bills  of  exchange,  but  this  does 


WHAT    IS    A    SEAL.  77 

States  the  assignor  or  indorser  is  made  liable  without  express 
stipulation  to  that  effect.1 

§  72.  What  is  a  Seal — Scrolls — Stamps. — What  consti- 
tutes a  seal  has  often  been  the  subject  of  discussion.  Sir 
Edward  Coke's  definition,  "  Sigillum  est  cera  impressa,  quia 
cera  sine  impressione  non  est  sigillum"2,  can  no  longer  be 
regarded  as  the  rule  upon  this  subject.  In  many  of  the 
United  States  a  scroll  is  by  statute  made  a  sufficient  seal.3 

not  include  a  sealed  note  in  which  payee  and  amount  are  blank,  Barden  v. 
Southerland,  70  N  C.  528.  Pennsylvania  (Act  of  1715,  Purd.  Dig.  1872  p.  161 
I  1)  makes  specialties  only  assignable  subject  to  equities.  So,  too,  South 
Carolina  (1873  R.  S.  594  §§134.  135) ;  Texas  (1873  Paseh.  Dig.  Art.  222) ;  Vir- 
ginia (1  Rev.  Code  484  c.  126  \  5 ;  1873  Code  c.  141  \  17) ;  West  Virginia  (1879 
R,  S.  c.  12  I  14) ;  and  Wisconsin  (1878  R.  S.  \\  2605,  2606).  In  general  these 
statutes  only  apply  to  bonds  or  other  contracts  for  the  payment  of  money 
only. 

Such  assignment  may  be  by  indorsement  in  Alabama  (1812  P.  L.  69  ;  Sayre 
v.  Lucas,  2  Stew.  259  (Ala.  1830));  California  (1872  Civ.  Code  §  6459); 
Colorado  (1877  G.  L.  110  g  91) ;  Delaware  (1874  Rev.  Code  c.  63  \  8);  Georgia 
(1873  Code  §  2776) ;  Idaho  (1875  R  L.  648  I  2) ;  Illinois  (1845  R.  S.  384  §  4; 
1880  R.  S.,  Hurd's  Ed.,  c.  98  g  4) ;  Indiana  (1876  R.  S.,  Davis'  Ed.,  c  177  I  1) ; 
Iowa  (1880  R.  C.  \\  2082,  2084) ;  Kansas  (1879  C.  L.  c.  14  §  1) ;  Mississippi 
(1871  R  C.  I  2228)  ;  Nebraska  (1873  G.  S.  c.  32  §  1) ;  Ohio  (1830  P.  L.  217  I  1; 
1880  R.  S.  \\  3171,  3172;  Swan  Stats.  587;  Avery  v.  Latimer.  14  Ohio  542 
(1846)) ;  Tennessee  (1786  P.  L.  c.  4  §  1 ;  1871  C.  S.  g  1957).  In  West  Virginia 
a  sealed  bill  is  a  specialty  and  not  a  note,  Laidley  v.  Bright,  17  W.  Va.  779 
(1881). 

'This  is  the  case  in  Colorado  (1877  G.  L.  Ill  g  94)  on  condition  of  the 
assignee  using  due  diligence  to  collect  from  the  maker;  District  of  Columbia 
(Dig.  L.  1863;  Laws  Md.  1763  c.  23  g  9),  the  assignor  becoming  liable  as  a 
surety;  Idaho  (1875  Rev.  L.  648  g  4),  like  Colorado,  supra.  So,  in  Illinois 
(1845  R.  S.  384  gg  3,  4 ;  1880  R.  S  ,  Hurd's  Ed.,  c.  98  gg  3,  4).  So,  in  Indiana 
(2  Rev.  St.,  Davis'  Ed.,  1876  c.  177  g  4) ;  Iowa  (1880  Rev.  Code  gg  2584,  2088) ; 
Maryland  (1878  Rev.  Code  595  g  48) ;  Mississippi  (1871  Rev.  Code  c.  47  g  2228) ; 
Missouri  (1  Rev.  S.  1879  c.  19  g  665) ;  Nebraska  (1873  G.  S.  c.  32  g  2) ;  Virginia 
(1873  Code  c.  141  g  18) ;  and  West  Virginia  (1879  R.  S.  c.  12  g  15). 

2  3  Coke  Inst.  169. 

3 In  California  a  ''scroll  of  a  pen  or  the  writing  of  the  word  'seal'  against 
the  signature  of  the  maker"  (Code  Civ.  Proc.  1872  g  11931).  In  Connecticut 
the  word  "seal"  or  the  letters  [L.  S.]  (Gen.  Stats.  Rev.  438  g  17).  And  a 
scroll  is  sufficient  in  Illinois  (1845  R.  S.  421  g  56;  1880,  Hurd's  Ed.,  R,  S.  c. 
29  g  1);  Minnesota  (1878  Gen.  Stats.  «•.  40  g  31)  ;  Mississippi  (1871  Rev.  Code 
c.  47  g  2227).  "  Whenever  it  is  manifest  that  a  scroll  is  intended  to  be  used 
by  way  of  seal  it  must  have  that  effect,  whether  it  so  appears  from  the  body 
of  the  instrument  or  from  the  scroll  itself,"  Thacher,  J.,  in  Whittington  v. 
Clarke,  8  Sm.  &  M.  480;  McRaven  v.  McGuire,  9  lb.  34.  But  such  intention 
must  be  manifest,  Hudson  v.  Poindexter,  42  Miss.  306.  A  scroll  is  a  seal  in 
New  Jersey  by  act  of  1797  (Pat,  Rev.  254;  1874  Rev.  741  g  1).  So,  in  Ohio 
(1880  Rev.  Stats.  g  4)  "any  character  or  mark  intended  for  a  seal"; 
Oregon  (1872  Deady  Gen.  L.  258  g  742) ;  Tennessee  by  act  of  1801.  Scruggs 
v.  Brackin,  4  Yerg.  52S  a.  d.  1833;  Virginia  (1  Rev.  Code  510  g  94 ;  1873  Code 
c.  140  g  2);  West  Virginia  (1878  K.  S.  c.  114  j  15);  and  Wisconsin  (1878 
Rev.  Stats.  \  2215;  Williams  v  Starr.  5  Wis.  549  I  L856)  ;  and  Missouri  (1  R. 
S.  1879  c.  19  g  662)  if  "  expressed  on  the  lace  fchereol  to  be  scaled  "  and  scroll 


78  FORMAL     REQUISITES. 

In  others  an  instrument  is  sealed  if  it  is  declared  in  its  body 
to  be  so.1  But  the  recital  of  an  unsealed  note  in  a  mortgage 
under  seal  securing  it  does  not  make  it  a  specialty.2  In  the 
absence  of  statute  to  that  effect  a  scroll  is  not  a  sufficient  seal,3 
although  referred  to  as  a  seal  in  the  body  of  the  note  or 
other  instrument.4  Nor  is  a  printed  impression  of  a  cor- 
porate seal  sufficient.5     But  an  impression  stamped  into  the 

affixed  "  by  way  of  seal  " ;  and  in  Michigan  "  any  device  affixed  by  way  of  a 
Beal"  since  1827  (Comp.  L.  1871  p.  1708  I  80).  See,  too,  Anderson  v.  Wil- 
burn,  8  Ark.  155,  although  tbe  scroll  lacked  the  usual  "  L.  S.";  Hastings  v. 
Vaughn,  5  Cal.  315  A.  D.  1855;  Commercial  Bank  v.  Ullman,  10  Sm.  &  M. 
411;  Underwood  v.  Dollins,  47  Mo.  259;  Long  v.  Ramsay,  1  Serg.  &  R.  72 
(1814) ;  Meredith  v.  Hinsdale,  2  Cai.  362,  as  to  Pennsylvania  law.  In  Min- 
nesota  a  scroll  is  a  seal,  although  not  referred  to  in  the  instrument,  Brown 
v.  Jordhall,  19  Cent.  L.  J.  38  (1884). 

1  Carter  v.  Penn,  4  Ala.  140.  And  previous  to  the  act  of  1839  both  seal  (or 
scroll)  and  recognition  of  it  in  the  instrument  were  required  in  Alabama. 
By  that  act  (Code  1876  \  2194)  "all  writings  which  import  on  their  face  to 
be  under  seal"  are  sealed  instruments.  So,  in  Connecticut  as  to  writings 
executed  "  by  any  person  or  corporation  not  having  an  official  or  corporate 
seal,  purporting  and  intending  to  be  a  specialty  or  under  seal  and  not  other- 
wise sealed  than  by  the  addition  of  the  word  seal  or  the  letters  [L.  S.]  " 
(1875  Gen.  Stats.  Rev.  438  \  17) ;  Fish  v.  Brown,  17  Conn.  340,  referring  tc 
acts  of  1824,  1836  and  1838,  which  had  all  been  retrospective  only.  In 
Georgia  the  expression  of  intention  to  seal  is  sufficient  by  act  of  1838. 
Milledge  v.  Gardner,  29  Ga.  700,  and  "  no  instrument  shall  be  considered  as 
under  seal  unless  so  recited  in  the  body  of  the  instrument"  (Code  1873  \ 
2915);  Chambers  v.  Kingsbury,  63  Ga.  828  (1882).  And  in  Missouri  such 
recital  is  necessary  to  the  sufficiency  of  a  scroll  (1  Rev.  St.  1879  c.  19  \  662). 
And  in  Mississippi  the  conclusion  of  a  note  with  the  words  "  witness  my  hand 
and  seal  "  is  enough  without  a  seal  to  make  it  a  specialty,  so  far  as  the  statute 
of  limitations  is  concerned,  McCarley  v.  Supervisors,  58  Miss.  483  (1880). 

2Clark  v.  Tiger,  2  Stark.  234;  Jackson  v.  Sackett,  7  Wend.  102  (1831). 

3  Blackwell  v.  Hamilton,  47  Ala.  470  (1872)  ;  Clegg  v.  Lemessurier,  15  Gratt 
108  (1859);  Andrews  v.  Herriot,  4  Cow.  508  (1825)  (overruling  Meredith  v 
Hinsdale,  2  Cai.  362,  on  question  of  applicability  of  Pennsylvania  law  t( 
New  York  action) ;  Warren  v.  Lynch,  5  Johns.  '239  (1810)  ;  Bank  of  Roches- 
ter v.  Gray,  2  Hill  227  (1842);  Coit  v.  Milliken,  1  Denio  376  (1815); 
Douglas  v.  Oldham,  6  N.  H.  150;  Beardsley  v.  Knight,  4  Vt,  479;  Deming  v. 
Bullitt,  1  Blackf.  241.  But  see,  contra,  Jones  v.  Logwood,  1  Wash.  (Va.)  42 
where  a  scroll  was  held  to  be  a  sufficient  seal  independently  of  the  act  of 
1788.  See,  however,  for  later  Virginia  cases  on  this  subject,  I  73  note  infra. 
See  also,  Commonwealth  v.  Griffith,  2  Pick.  18  n. ;  Bradford  v.  Randall,  5  lb 
497;  Tasker  v.  Bartlett,  5  Cush.  364. 

4Irwin  v.  Brown,  2  Cranch  C.  C.  314  (Va.  case)  (1822);  especially  where 
there  is  only  a  "flourish  "  opposite  the  name,  of  which  it  can  be  said  by  the 
court,  "judging  by  inspection  I  see  nothing  like  a  seal,"  Tilghman,  C.  J.,  in 
Taylor  v.  Glaser,  2  Serg.  &  R.  502. 

6 Bates  v.  Boston  and  N.  Y.  C.  R.  R.,  10  Allen  251  (1865) ;  Farmers'  and 
Mfrs.'  Bank  v.  Haight,  3  Hill  493  (1842).  So,  of  a  notary's  seal,  Bank 
of  Rochester  v.  Gray,  2  Hill  227.  See  also,  Jackson  v.  Myers,  43  Md 
452  (1875) ;  Muth  v.  Dolfield,  lb.  466.  But  a  corporate  seal  printed  on 
a  bond,  which  recites  that  it  is  sealed,  has  been  held  to  be  a  sufficient  seal, 
Royal  Bank  v.  Grand  Junction  R.  R.,  100  Mass.  444;  Woodman  v.  York  and 


EVIDENCE.  79 

paper  has  been  held  to  be  a  good  corporate  seal.1  So,  too,  a 
paper  stuck  on  with  mucilage  and  stamped  with  a  seal.2 

§  73.  Evidence — Presumptions. — In  the  absence  of  statutory 
requirements  to  that  effect,  express  recognition  of  the  seal  in 
the  instrument,  e.  g.  "witness  my  hand  and  seal,"  is  not 
necessary.3  In  States,  however,  where  a  scroll  is  sufficient 
seal,  such  recognition  is  prima  facie  evidence  of  the  obligor's 
intention  and  dispenses  with  other  proof  of  an  intention  to 

Cumb.  R.  R.,  50  Me.  549.  An  impression  upon  the  paper  or  other  material 
on  which  the  instrument  is  written  is  sufficient  seal  by  statute  in  California 
(Civ.  Code  1872  \  6628:  Code  Civ.  Proc.  1872  \  11931).  So,  of  a  court  seal 
in  Colorado  (Code  Civ.  Proc.  1877  U  3S5,  408).  So,  of  corporate  and  official 
seals  in  Connecticut  (1875  Gen.  Stats.  Rev.  438  I  17).  So,  of  public  official 
and  court  seals  in  Iowa  (1880  Rev.  Code  p.  11  \  14) ;  and  in  Maine  (1871  Rev. 
Stats,  p.  58  |  15) ;  and  in  Massachusetts,  as  also  of  corporate  seals  (1859  Gen. 
Stats,  c.  3  I  7) ;  and  in  Michigan,  of  all  seals  (see  note  2  p.  77) ;  and  in  Minne- 
sota, of  public  seals  (1878  Gen.  Stats,  c.  4  $  1);  and  in  Mississippi,  "any 
printed  impression  intended  as  a  seal  "  (1871  Rev.  Code  c.  47  \  1).  In  Nevada 
a  public  seal  may  be  affixed  "  by  impressing  it  on  the  paper  or  on  a  substance 
attached  to  the  paper  and  capable  of  receiving  the  impression  "  (1873  Comp. 
L.  ?  965).  In  New  Hampshire  an  impression  on  the  paper  is  a  good  public 
seal  (1878  Gen.  L.  44  §  10).  In  Neiv  Jersey  any  device  affixed  "  by  way  of  a 
seal  "  is  sufficient  bract  of  1797  (Pat.  Rev.  254 ;  1874  Rev.  741  I  1).  In  New 
York  a  court  seal  may  be  made  by  a  stamp  (3  Rev.' Stat ,  6th  Ed.,  1875  p. 
439  I  24).  In  Ohio  "any  character  or  mark  intended  for  a  seal  "  and  wax, 
wafer  or  other  adhesive  substance  or  an  impression  on  the  paper  alone  is 
sufficient  for  any  seal  (1880  Rev.  Stats.  \  4).  So,  in  Oregon  a  "  stamp  or  im- 
pression made  upon  wax,  wafer,  paper  or  any  other  like  substance  upon 
which  a  visible  and  permanent  impression  can  be  made,"  or  "  a  wafer  or 
wax  attached  to  the  instrument  or  a  paper  attached  to  it  by  an  adhesive 
substance,"  is  a  sufficient  seal  (1872  Deady  Gen.  L.  258  I  742).*  And  in  Ver- 
mont a  public  seal  may  be  made  by  an  impression  on  the  paper  (1862  Gen. 
Stats.,  Ed.  1870,  p.  54  |  13).  Where  the  statute  provides  only  tor  public 
official  or  corporate  seals,  it  may  be  inferred  that  private  seals,  being  of  less 
dignity,  may  be  made  in  like  manner. 

'Corrigan  v.  Trenton  Del.  Falls  Co.,  1  Halst.  Ch.  52  (1845) ;  Ross  v.  Bedell, 
5  Duer  462  (1856) ;  Curtis  v.  Leavitt,  15  N.  Y.  9  (1857) ;  Connolly  v.  Good- 
win, 5  Cal.  220  (1855);  Allen  v.  Sullivan,  32  N.  H.  446  (1855);  Hendee  v. 
Pinkerton,  14  Allen  381  (1867);  Foster,  J.,  saying  in  this  case,  "such  an 
impression  of  a  seal  has  never  been  held  insufficient,  and  after  our  courts 
have  allowed  wafers  instead  of  wax,  and  paper  with  gum  or  mucilage  in- 
stead of  wafers,  there  seems  little  reason  why  we  should  hesitate  also  to 
allow  the  sufficiency  of  a  corporate  seal  on  the  paper  itself."  And  it  is  said 
by  Grier,  J.,  in  Pillow  v.  Roberts,  13  How.  472  (1851),  "it  is  the  seal  which 
authenticates  and  not  the  substance  on  which  it  is  impressed."  See,  too, 
Sugden  on  Powers  (1st  Am.  Ed.)  236.  But  see,  contra,  Mitchell  v.  Union 
Life  Ins.  Co.,  45  Me.  105  (1858). 

2Gillespie  v.  Brooks,  2  Redf.  350  (1876) ;  or  a  revenue  stamp  stuck  on  for 
a  seal,  Van  Bokkelen  v.  Taylor.  02  X.  Y.  10S  (1875) ;  but  not  a  ribbon  passed 
through  slits  in  the  paper.  Duncan  v.  Duncan,  1  Watts  322(1833).  Any- 
thing attached  for  a  seal  is  sufficient  by  statute  in  California  (Code  Civ. 
Proc.  \  11931),  as  regards   public  seals. 

sConine  v.  Junction,  etc..  and  15.  R.  K,  3  lloust.  288(1866).  But  see. 
Moore  v.  Leseur,  IS  Ala.  606  (1851 ). 


80  FORMAL     REQUISITES. 

seal;1  while  the  absence  of  all  mention  of  it  in  the  instru- 
ment leaves  the  fact  of  sealing  to  be  proved.2  In  Virginia, 
on  the  contrary,  such  proof  cannot  be  made  by  parol.3  In 
the  words  of  Hornblower,  C.  J.,  in  Corlies  v.  Van  Note,4 
"If  an  instrument  is  shown  to  us  with  a  seal  in  fact,  that  is 
with  wafer  or  wax  affixed  to  it,  the  law  pronounces  it  a  deed 
and  that  whether  anything  is  said  in  the  instrument  about  a 
seal  or  not.  *  *  *  When  a  writing  with  nothing  but  a 
blot  or  scroll  or  flourish  after  the  name  is  shown  in  court, 
we  are  bound  to  consider  and  treat  it  as  a  simple  contract 
only,  unless  it  appears  by  the  writing  itself  or  by  the  his 
testibus  clause,  that  the  party  making  it  intended  to  do  so 
under  his  hand  and  seal."  And  in  this  case  it  was  declared 
to  be  a  question  for  the  court  and  not  for  the  jury,  to  be  de- 
termined by  inspection  whether  an  instrument  be  sealed  or 
not.5     In  other  cases  proof  of  the  maker's  signature  has  been 

1  Force  v.  Craig,  2  Halst.  330,  Ford,  J.,  saying  in  this  case,  "  The  defendant 
demands  evidence  that  the  scroll  was  intended  for  a  seal,  but  there  needs  no 
other  proof  than  the  instrument  itself  saying  'witness  my  hand  and  seal.' 
In  this  state  of  things  the  court  and  jury  are  bound  to  treat  it  as  a  sealed 
bill."     Lindsay  v.  State,  15  Ala.  43  (1848). 

2Newbold  v.  Lamb.  2  South.  449  (1819) ;  Corlies  v.  Van  Note.  1  Harr.  (N. 
J.)  324.  But  other  cases  find  in  such  scroll  seal,  although  not  referred  to  in 
the  body  of  the  instrument,  a  presumption  in  favor  of  an  intention  to  seal, 
Parks  v.  Duke,  2  McCord  380;  Peasley  v.  Boatwright,  2  Leigh  196;  Trasher 
v.  Everhart,  3  Gill  &  J.  234;  Giles  v.  Mauldin,  7  Rich.  L.  11  (1853).  And  in 
Merritt  v.  Cornell,  1  E.  D.  Smith  335,  affirmed  in  the  Court  of  Appeal?, 
Ingraham,  J.,  says  of  a  scroll  not  mentioned  in  the  instrument,  "  Proof  of 
the  handwriting,  with  the  fact  of  the  seal  being  affixed  and  the  possession 
by  the  plaintiff,  is  presumptive  evidence  of  signing,  sealing  and  delivery. 

*  *  *  It  is  sufficient  if  the  scroll  be  affixed  at  the  time  of  delivery  and 
execution,  and  that  is  presumed  (in  the  absence  of  other  proof)  from  the 
fact  that  the  obligee  is  in  possession  of  the  instrument  with  the  scroll 
attached." 

sClegaj  v.  Lemessurier,  15  Gratt.  108  (1859);  Cromwell  v.  Tate's  Exr.,  7 
Leigh  301  (1836)  ;  Anderson  v.  Bullock,  4  Munf.  442  (1815)  ;  Baird  v.  Blai- 
grove,  1  Wash.  170  (1793) ;  Austin  v.  Whitlock,  1  Munf.  487  (1810)  ;  Jenkins 
v.  Hurt's  Exr.,  2  Rand.  446  (1824).  In  Anthony  v.  Harrison,  14  Hun  201, 
Mr.  Calvin  Frost,  the  referee,  says  of  the  foregoing  Virginia  cases  that  they 
"are  conceded  to  hold  a  doctrine  not  in  harmony  with  the  common  law. 

*  *  *  The  weight  of  authority  is  largely  against  the  Virginia  cases." 
To  like  effect,  see  Parks  v.  Duke,  2  McCord  380  (1823);  Peasley  v.  Boat- 
wright, 2  Leigh  196  (1830)  ;  Trasher  v.  Everhart,  3  Gill  &  J.  234  (1831).  In 
Peasley  v.  Boatwright,  Anderson  v.  Bullock  and  Austin  v.  Whitlock,  supra, 
there  were  scroll  seals  after  the  words  "  witness  our  hands." 

*1  Harr.  (N.J.)  324. 

5 So,  too,  Moore  v.  Leseur,  18  Ala.  606  (1851) ;  Van  Bokkelen  v.  Taylor,  62 
N.  Y.  108  (1875) ;  Duncan  v.  Duncan,  I  Watts  322  (1833). 


CORPORATION     SEALS.  81 

held  to  raise  a  presumption  in  favor  of  the  seal  having  been 
properly  affixed.1 

But  it  may  be  shown  in  equity  that  a  seal  was  omitted  by 
mistake  after  the  clause  "witness  my  hand  and  seal;"2  or 
affixed  by  mistake;3  or  that  one  seal  was  intended  for  the 
seal  of  both  A.  and  B.,  who  executed  a  paper  which  con- 
cluded "witness  our  hands  and  seals"  and  placed  but  one 
seal  opposite  both  names;4  or  that  a  seal  affixed  to  the 
obligee's  name  at  the  end  of  the  condition  of  a  bond  was 
intended  for  the  obligor's  name  placed  by  mistake  at  the  be- 
ginning of  the  condition  and  without  seal.5  If  a  note,  joint 
in  form,  is  sealed  by  one  maker  and  not  by  the  other,  it  will 
be  treated  as  the  note  of  one  and  the  bond  of  the  other,6  and 
cannot  be  enforced  against  them  in  a  joint  action  as  their 
joint  contract.7 

§  74.  Corporation  Seals — Coupon  Bonds. — It  was  once 
thought  that  a  corporation  seal  was  only  equivalent  to  its 
signature,  and  indeed  the  only  way  by  which  it  could  exe- 
cute a  written  instrument.8  And  therefore  such  seal  was 
held  not  to  make  a  specialty  of  the  instrument,  which  re- 
mained a  simple  contract  notwithstanding  its  execution  under 
a  corporate  seal.9     It  is  now,  however,  established  that  a  cor- 

•Merritt  v.  Cornell,  1  E.  D.  Smith  335  (1821);  Muckleroy  v.  Bethanv,  27 
Tex.  551  (1864). 

aMcCown  v.  Sims,  69  N.  C.  159  (1873).  See,  too,  McCarley  v.  Supervisors, 
58  Miss.  483  (1880),  where  such  instrument  was  regarded  as  sealed. 

sLynam  v.  Califer,  64  N.  C.  572  (1870). 

♦Stabler  v.  Cowman,  7  Gill  &  J.  284  (1835) ;  Twittv  v.  Houser,  7  So.  Car.  153 
(1875) ;  Bowman  v.  Robb,  6  Penna.  St.  302  (1847). 

5Argenbright  v.  Campbell,  3  Hen.  &  M.  144,  193  (1808). 

"Biery  v.  Haines,  5  Whart,  563  (1840) ;  Rankin  v.  Roler,  8  Gratt.  63  (1851). 

'Biery  v.  Haines,  supra.     But  see,  contra,  Rankin  v.  Roler,  supra. 

8Byles  70;  2  Daniel  496;  1  Parsons  163;  Story  on  Prom.  Notes  §  74; 
Angell  &  Ames  on  Corp.  \  219.  Such  seal  is  sometimes  available  to  show 
the  instrument  to  have  been  intended  for  an  act  of  the  corporation  and  not 
of  the  individual  officer  signing  it,  Dutton  v.  Marsh,  L.  R.  6  Q.  B.  361  (1871   . 

9"It  would  seem  that  the  seal  in  such  case  is  simply  inoperative,  not 
interfering  with  the  negotiability  of  the  instrument,  if  otherwise  valid,  and 
not  converting  into  a  deed  a  document  purporting  to  be  negotiable,  but 
which  the  corporation  had  no  power  to  make.  The  bill  or  note,  if  good  at 
all,  is  good  as  a  bill  or  note,  and  not  as  a  money  bond  or  as  an  acknowledg- 
ment under  seal  of  indebtedness,"  Green's  Brice's  Ultra  Vir.  162;  Asr_r- 
Nicholson,  1  H.  &  N.  165;  25  L.  J.  Exch.  348. 


82  FORMAL     REQUISITES. 

poration  note  or  other  contract  can  be  executed  without  the 
corporate  seal.1     A  corporation  may  use  a  common  seal.2 

Independently  of  the  statutes  above  referred  to,  bills  and 
notes  executed  by  corporations  under  their  corporate  seal 
have  been  held  to  be  negotiable  and  subject  to  all  the  rules 
of  commercial  paper.3     And  it  is  now  well  established  that 

'Byles  71;  2  Daniel  496;  1  Parsons  163;  Story  on  Prom.  Notes  \  74; 
Dan  forth  v.  Schoharie  Tpk.  Co.,  12  Johns.  227;  Union  Bank  v.  Ridgely,  1 
Hair.  &  G.  413  (1827);  Many  v.  Beekman  Iron  Co.,  9  Paige  188  (1841); 
Mechanics'  Bank  v.  Bank  of  Columbia,  5  Wheat.  326;  Legrand  v  Hampden 
College,  5  Munf.  324  (1817) ;  Hamilton  v.  Lycoming  Mut.  Ins.  Co.,  5  Penna. 
St.  339  (1847);  American  Ins.  Co.  v.  Oakley,  9  Paige  496  (1842)  :  Bank  of 
Columbia  v.  Patterson,  7  Cranch  305  (1813) ;  Creswell  v.  Holden,  3  MacArth. 
579  (1879);  Commercial  Bank  v.  Newport  Mfg.  Co.,  1  B.  Mon.  13  (1840). 
And  this  rule  has  been  extended  to  municipal  corporations,  Fourth  School 
Dist.  v.  Wood,  13  Mass.  199  (1816) ;  1  Dillon  Alun.  Corp  g  374.  And  a  note 
to  a  corporation  may  be  transferred  by  its  agent  by  an  assignment  not  un- 
der seal,  Garrison  v.  Combs,  7  J.  J.  Marsh.  84  (1831) ;  or  by  indorsement  not 
under  seal  by  the  cashier  of  a  bank,  Fleckner  v.  U.  S.  Bank,  8  Wheat.  338, 
357  (1823). 

The  English  courts  have  held  more  strictly  than  those  of  the  United  States 
to  the  old  rule  requiring  corporate  contracts  to  be  sealed,  Angel  1  &  Ames  on 
Corp.  I  236;  Slack  v.  Highgate  Archway  Co.,  5  Taunt.  792;  Lamprell  v. 
Guardians  of  the  Poor,  3  Exch.  306;  Diggle  v  London  and  B.  Rv..  5  Exch. 
442;  Church  v.  Imperial  Gas  Co.,  6  Ad.  &E\.  846;  Mayor,  &c.,  of  Ludlow  v. 
Charlton,  6  M.  &  W.  815;  East  London  Water  Co.  v.  Bailey,  4  Bing.  283  ; 
Arnold  v.  Mayor  of  Poole,  4  Man.  &  Gr.  861 ;  Copper  Miners'  Co.  v.  Fox,  16 
Q.  B.  229.  But  contracts  of  slight  importance  and  constant  recurrence  are 
excepted  from  this  rule,  East  London  Water  Co.  v.  Bailey,  supra;  Australian 
S.  N.  Co.  v.  Marzetti,  11  Exch.  234  ;  Church  v.  Imperial  G.  L.  Co.,  6  Ad.  & 
El.  846;  London  G.  L.  Co.  v.  Nicholls,  2  C.  &  P.  365;  Beverley  v.  Lincoln  G. 
L.  Co  ,  6  Ad.  &  El.  829.  A  distinction  has  also  been  made  in  favor  of  exe- 
cuted contracts,  as  of  themselves  implying  a  consideration,  Mayor  of  Staf- 
ford v.  Till,  4  Bing.  75;  East  London  Water  Co.  v.  Bailey,  supra;  Beverley  v. 
Lincoln  G.  L.  Co.,  supra ;  Dean  of  Rochester  v.  Pierce,  1  Campb.  466;  Fish- 
mongers' Co.  v.  Robertson,  5  Man.  &  Gr.  131 ;  Lowe  v.  L.  &  N.  W.  Ry.,  18  Q. 
B.  633,  this  and  most  of  the  foregoing  cases  being  actions  for  use  and  occu- 
pation ;  but  the  validity  of  this  distinction  is  questioned  in  Paine  v.  Strand 
Union,  8  Q.  B.  340;  Church  v.  Imperial  G.  L.  Co.,  supra. 

'■'Thus,  in  Mill  Dam  Foundry  v.  Hovey,  21  Pick.  417  (1839),  an  ordinary 
water  seal  affixed  to  a  corporation  contract  after  the  words  "  witness  our 
hands"  was  held  a  sufficient  seal  for  the  corporation.  See,  too,  Bank  of 
Middlebury  v.  Rutland  Ry.,  30  Vt.  159. 

3 Jackson  v.  Myers,  43  Md.  452  (1875) ;  Muth  v.  Dolfield,  lb.  466;  Central 
Nat.  Bank  v.  Charlottesville  R.  R.,  5  So.  Car.  156  (1873).  In  re  Imperial  Land 
Co.,  L.  R.  11  Eq.  498  (1870),  Sir  R.  Malins,  V.  C,  said:  "I  agree  with  Mi' 
Chitty  that  a  debenture  merely  means  an  instrument  which  shows  that  the 
party  owes  and  is  bound  to  pay.  It  is  not  less  so  because  at  the  top  it  is 
called  a  debenture  bond.  *  '*  *  Every  principle  of  public  policy  calls 
upon  me  to  repudiate  the  notion  that  such  documents  are  to  be  treated  like 
bonds  or  choses  in  action  in  which  the  equities  between  the  parties  can  l>e 
entered  into,"  and  quoted  with  approval  the  language  of  Lords  Justices 
Wood  and  Selwyn  in  Ex  parte.  City  Bank,  L.  R.  3  Ch.  758  (1868).  In  this 
case  (p.  762)  Sir  W.  P.  Wood,  L.  J.%  says  of  a  similar  instrument,  "  It  is 
under  seal ;   but  so.  in  the  absence  of  special  powers,  must  every  instrument 


CORPORATION     SEALS.  83 

corporation  bonds  under  seal,  if  drawn  in  a  negotiable  form, 
are  negotiable  like  bills  and  notes  and  possess  in  general  all 
the  qualities  of  commercial  paper.1 

he  which  is  executed  by  a  corporation.  If  there  had  been  in  these  articles 
any  provision  such  as  we  often  find  providing  for  the  issuing  negotiable  in- 
struments not  under  seal,  the  argument  from  the  use  of  a  seal  would  have 
had  much  more  weight." 

'This  has  been  held  of  corporate  bonds  generally  :  Colson  v.  Arnot,  57  X. 
Y.  253  (1S74)  ;  Evertson  v.  Nat.  Bank,  66  N.  Y.  14  (1876) ;  Carr  v.  Le  Fevre, 
27  Penna.  St.  413  (1S56) ;  Hotchkiss  v.  Nat,  Bank,  21  Wall.  354  (1874) ;  In  re 
Tallassee  Mfg.  Co.,  64  Ala.  537  (1879).  But  not  a  corporate  "  debenture  "  in 
its  terms  conditional,  Crouch  v.  Credit  Foncier,  L.  R.  8  Q.  B.  374.  In  Carr 
v.  Le  Fevre,  27  Penna.  St.  418,  Lewis,  C.  J.,  said  of  such  bonds  payable  to 
bearer:  "Such  bonds  are  not  strictly  negotiable  under  the  law  merchant,  aa 
are  promissory  notes  and  bills  of  exchange.  They  are,  however,  instru- 
ments of  a  peculiar  character,  and,  being  expressly  designed  to  be  passed 
from  hand  to  hand  and  by  common  usage  actually  so  transferred,  are 
capable  of  passing  by  delivery  so  as  to  enable  the  holder  to  maintain  an 
action  on  them  in  his  own  name."  So,  too,  Morris  Canal  and  Banking  Co. 
v.  Fisher,  1  Stock.  699. 

Also  of  Railroad  Bonds :  Chapin  v.  Vt.  and  Mass.  R  R.,  8  Gray  575  (1857) ; 
White  v.  Vt.  and  Mass.  R.  R.,  21  How.  575  (1858) ;  Junction  R.  R.  v.  Cleneav. 
13  Ind.  161  (1859) ;  Moran  v.  Comrs.  Miami  Co.,  2  Black  722  (1862) ;  Brainerd 
v.  N.  Y.  &  N.  H.  R.  R.,  25  N.  Y.  496,  affirming  10  Bosw.  332  (1862) ;  Conn. 
Mut.  ins.  v.  C.  C.  &  C.  R.  R ,  41  Barb.  9  (1863) ;  Birdsall  v.  Russell.  29  N.  Y. 
220  (1864) ;  Wickes  v.  Adirondack  Co.,  2  Hun  112;  S.  C.  4  T.  &  C.  250  (1874)  ; 
Lan^ston  v.  South  Car.  R.  R.,  2  So.  Car.  248  (1870)  ;  Murray  v.  Lardner,  2 
Wall  110  (1876) ;  Nat.  Exch.  Bank  v.  H.  P.  &  F.  R,  R.,  8  R  I.  375  (1866) ; 
Grand  Rapids  and  Ind.  R.  R.  v.  Sanders,  17  Hun  552  (1879) ;  Comrs  of  Knox 
Co.  v.  Aspinwall,  21  How.  539;  State  v.  Cobb,  64  Ala.  127  (1S79).  The  con- 
trary was  held  in  Jackson  v.  Y.  &  C  R.  R.,  4S  Me.  147  (185S) ;  but  this  case 
is  not  supported,  Evertson  v.  Nat.  Bank,  66  N.  Y.  14.  In  Moran  v  Comrs., 
supra,  they  are  called  by  Wayne,  J.,  "  commercial  securities."  In  Junction 
R.  R.  v.  Cleneay,  supra,  Perkins,  J.,  speaks  of  them  as  "  not  governed  exactly 
by  the  law  merchant,"  but  "entitled  to  all  the  privileges  of  commercial 
paper."  While  in  White  v.  R.  R.,  supra,  Nelson,  J.,  says  of  their  negotia- 
bility that  "  the  usage  and  practice  of  the  companies  themselves,  and  of  the 
capitalists  and  business  men  of  the  country  dealing  in  them,  as  well  as  the 
repeated  decision  or  recognition  of  the  principle  by  courts  and  judges  of 
the  highest  respectability,  have  settled  the  question.'' 

So  of  Municipal  Bonds :  1  Dillon  Mun.  Corp.  §  405 ;  Craig  v.  City  of  Vicks- 
burg,  .".1  .Miss.  216  (1856) ;  Bank  of  Rome  v.  Rome,  19  N.  Y.  20  (1859) ;  Gelpcke 
l>.  City  of  Dubuque,  1  Wall.  175  (1863);  City  of  Aurora  v.  West,  22  Ind.  88 
(1864);  Could  v.  Town  of  Sterling,  23  N.  Y.  464  (1861);  Force  v.  City  of 
Elizabeth,  1  Stew.  Eq.  406  ;  Durant  v.  Iowa  County,  1  Woolw.  C.  C.  72  (1864); 
Thomson  v.  Lee  Co.,  3  Wall.  327  (1865);  Arents  v.  Commonwealth,  18  Gratt. 
75(1  (1868);  Bovd  v.  Kennedy,  9  Vr.  146;  School  Dist.  v.  State,  8  Neb.  168 
(1879);  Lindsley  v.  Diefendorf,  43  How.  Pr.  357  (1872);  Marsh  v.  Little,  1 
Hun  554;  S  C..4T.&C.  116  (1S74) ;  Societv  for  Savings  v.  New  London,  29 
Conn.  174  (1860) :  Town  of  Ea^le  v.  Kohn,  84  III.  292  (1876)  :  Weith  v.  City 
of  Wilmington,  68  N.  C.  24  ;  Belo  v.  Comrs.  Forsyth  Co.,  76  N.  C.  4S9  (1877  | ; 
City  of  San  Antonio  v.  Lane,  32  Tex.  405  (1869);  Board  v.  T.  &  P.  Rv.  Co., 
46  Tex.  316  (1876) ;  Conns,  of  Marion  Co.  v.  Clark,  4  Otto  278  (1876).  *  Such 
bonds  are  declared  to  possess  "all  the  qualities  of  commercial  paper"  by 
Swayne,  J.,  in  Gelpcke  v.  City  of  Dubuque,  supra,  and  by  Miller,  J.,  in 
Durant  v.  Iowa  County,  supra,  and  by  Davis,  J.,  in  Thomson  v.  Lee,  supra. 
The  decision  denying  the  negotiability  of  such  bonds  in  Diamond  v.  Law- 


84  FORMAL     REQUISITES. 

rence  County,  37  Penna.  St.  353  (1860),  cannot  be  regarded  as  authority,  at 
least  beyond  tbe  limits  of  the  State  of  Pennsylvania.  But  see,  Hopper  v. 
Town  of  Covington,  8  Fed.  Rep.  777  (1881),  where  the  bonds  were  issued 
without  authority. 

So,  of  Public  Securities  : 

U.  S.  Treasury  Notes,  Vermilye  v.  Adams  Exp.  Co.,  21  Wall.  138  (1874) ; 
Dinsmore  v.  Duncan,  57  N.  Y.  573  (1874) ;  Seybel  v.  Nat.  Currency  Bank,  51 
N.  Y.  288  (1873) ;  Frazer  v.  D'Invilliers,  2  Penna.  St.  200  (1845) ;  Ringling  v. 
Kohn,  4  Mo.  App.  59  (1877). 

State  Bonds,  Delafield  v.  State  of  Illinois,  2  Hill  177  (1841) ;  or  a  bond  of 
the  King  of  Prussia  payable  "  to  every  person  Avho  should  for  the  time  tben 
being  be  the  holder,"  Gorgier  v.  Mieville,  3  B.  &  C.  45  (1824). 

State  Improvement  Bonds,  Finnegan  v.  Lee,  18  How.  Pr.  186. 

But  an  East  India  bond,  payable  to  A.  B.,  "  his  executors  and  assigns,"  was 
held  in  England  not  negotiable  in  Glyn  v.  Baker,  13  East  509.  In  the  next 
year,  however,  an  act  was  passed  to  make  such  bonds  negotiable,  51  Geo. 
III.  c.  64. 

This  is  also  true  of  detached  coupons  which  are  not  generally  under  seal, 
although  the  bond  to  which  thev  belong  may  be,  1  Dillon  Man.  Corp.  \  405  n. ; 
Gelpcke  v.  City  of  Dubuque,  1  Wall.  175  (1863) ;  Thomson  v.  Lee,  3  lb.  327 
(1865) ;  Haven  v.  Grand  Junction  R.  R.,  109  Mass.  88  (1871) ;  Burroughs  v. 
Comrs.  of  Richmond  Co.,  65  N.  C.  234  (1871) ;  Clark  v.  Iowa  City,  20  Wall. 
583  (1874) ;  Evertson  v.  Nat.  Bank  of  Newport,  4  Hun  692;  S.  C,  66  N.  Y.  14 
(1875) ;  Ketchum  v.  Duncan,  6  Otto  659  (1877) ;  Welsh  v.  First  Div.  R.  R., 
25  Minn.  314  (1878) ;  Nat.  Exch.  Bank  v.  H.  P.  &  F.  R.  R.,  8  R.  I.  375  (1866). 
And  also  of  coupons  attached  to  a  negotiable  bond,  McCoy  v.  Washington 
Co.,  3  Wall.  Jr.  381.  Such  coupons  must,  however,  contain  words  of  nego- 
tiability, Jackson  v.  York  &  C.  R.  R.,  48  Me.  147  (1858) ;  Augusta  Bank  v. 
Augusta,  49  lb.  507._ 

A  sealed  bond  with  the  payee's  name  in  blank,  although  of  negotiable 
form,  is  now  held  not  to  be  negotiable  in  England,  Hibblewhite  v.  McMorine, 
6  M.  &  W.  200,  overruling  Texira  v.  Evans,  1  Anstr.  228.  In  the  United 
States  there  is  a  diversity  of  opinion  on  this  point.  Such  bonds  have  been 
held  to  be  negotiable  in  White  v.  Vt.  &  Mass.  R.  R.,  21  How.  575 ;  Hubbard 
v.  N.  Y.  &  H.  R.  R.,  36  Barb.  286;  Dutchess  Co.  Ins.  v.  Hachfield,  1  Hun 
675 ;  S.  C,  4  T.  &  C.  158 ;  Boyd  v.  Kennedy,  9  Vr.  146 ;  Chapin  v.  Vt.  &  Mass. 
R.  R.,  8  Gray  575.  For  many  other  authorities  both  pro  and  contra,  see 
Judge  Stewart's  note  in  City  of  Elizabeth  v.  Force,  2  Stew.  Eq.  592 ;  also 
Preston  v.  Hull,  23  Gratt.  600:  S  C ,  21  Am.  L.  Reg.  699. 


DATE.  85 


III.    DATE. 


75.  Date — When  Necessary. 

76.  Blanks  — Omission  of  Date. 

77.  Delivery  Shown  by  Date— Parol  Evidence. 

78.  Mistake  in  Date. 

7(.».  Ante-dating — Post-dating. 

80.  Post-dated  Checks. 

81.  Local  Date. 

82.  •'Date  of  Indorsement. 

83.  Acceptance. 

84.  Alteration — Misdescription. 

85.  Limitation  Affected  by  Date. 

§  75.  Date — When  Necessary. — It  is  usual  to  express  in 
all  commercial  paper  the  time  and  place  at  which  it  is  drawn 
and  given.  Date  in  its  full  sense  comprehends  both  state- 
ment of  time  and  place,  although  it  is  often  used  with  refer- 
ence to  the  former  only.  The  date  is  commonly  placed  at 
the  upper  right-hand  corner  of  the  instrument,  e.  g.  New 
York,  May  1st,  1882.  The  position  is  immaterial,  whether 
at  top  or  bottom.1  By  the  English  common  law  no  date 
whatever  is  essential.2  It  is,  however,  required  by  British 
statute  in  the  case  of  promissory  notes  for  more  than  20s. 
and  less  than  £5,  payable  to  bearer  on  demand.3  Formerly 
printed  dates  were  prohibited  in   England  in  the  case  of 

Jl  Daniel  92;  1  Parsons  388;  Sheppard  v.  Graves,  14  How.  505  (1852). 

*Byles  79;  Chitty  171 ;  1  Daniel  92;  1  Edwards  §171;  1  Parsons  41  ;  Story 
on  Bills  I  37  ;  Story  on  Prom.  Notes  \  45  ;  De  la  Courtier  v.  Bellamy,  2  Show. 
4'22  ;  Hague  v.  French,  3  Bos.  &  P.  173  ;  Giles  v.  Bourne,  6  M.  &  S.  73  ;  Van- 
dervere  v.  Ogburn,  Penn.  67  (N.  J.  1806) ;  Seldonridge  v.  Connable,  32  Ind. 
375  (1869) ;  Pierce  v.  Richardson,  37  N.  H.  306  (1858) ;  Dean  v.  De  Lezardi, 
24  Miss.  424  (1852);  Whiting  v.  Daniel,  1  Hen.  &  M.  390  (1807);  Stout  v 
Cloud,  5  Litt.  205  (1824).  It  is  said,  however,  by  Sutherland,  J.,  that  "we 
all  know  that  it  is  necessary  to  its  free  and  uninterrupted  negotiability,' 
Mitchell  v.  Culver,  7  Cow.  336  (1827). 

326  and  27  Vict.  c.  105,  requiring  such  notes  to  bear  date  at  or  before  tht 
time  of  issue.  This  law  formerly  embraced  also  negotiable  bills  and  drafts 
17  Geo.  III.  c.  30  §  1.  This  act  was  repealed  by  3  Geo.  IV.  c.  70,  but  wan 
revived  by  7  Geo.  IV.  c.  6,  except  as  to  checks  on  a  banker.  The  exemp- 
tion of  checks  from  stamp  duty  by  55  Geo.  III.  c.  184,  and  9  Geo.  IV.  c.  49 
extended  only  to  those  specifying  the  place  where  they  were  issued  and 
bearing  date  on  or  before  the  day  on  which  they  were  issued.  A  false  state- 
ment of  the  place  avoided  the  instrument,  Walters  v.  Brogden,  1  Y.  &  J. 
457  ;  Field  v.  Woods.  7  Ad.  &  El.  114;  Rex  v.  Pooley,  3  Bos.  &  P.  311 ;  Bopart 
v.  Hicks,  3  Exch.  1.  Under  this  rule  "  Dorchester  Old  Bank,  established  it> 
1786,"  printed  on  a  check,  was  held  sufficient,  Strickland  v.  Mansfield,  8  Q. 
B.  <)7o;  but  not  the  heading  "Oxford,  Worcester,  &c,  Railway,"  Ward  v 
Oxford  Railway  Co.,  2  DeG.  M.  it  G.  750  (1852). 


86  FORMAL     REQUISITES. 

promissory  notes  payable  to  bearer  on  demand;1  but  this  is 
now  repealed.2 

No  American  statutes,  it  is  believed,  require  notes,  bills  or 
checks  to  bear  a  date.3  It  seems,  however,  hardly  necessary 
to  urge'  upon  the  careful  draftsman  a  full  and  accurate 
expression  both  of  the  time  and  place  of  making.  Such 
expression  avoids  all  ambiguity  in  instruments  made  pay- 
able at  a  fixed  time  after  date,  as  well  as  trouble  likely 
to  arise  under  stamp  acts  and  statutes  of  limitation,  and 
usury  and  questions  as  to  a  party's  capacity  to  contract 
at  that  particular  time.  And  the  local  date  makes  more 
easy  the  determination  of  what  local  law  shall  govern  the 
contract.  Indeed,  Mr.  Chitty  suggests  that  "to  prevent  in- 
tentional or  accidental  alteration,  which  may  invalidate  the 
instrument  even  in  the  hands  of  an  innocent  holder,  it  may 
be  advisable  to  write  the  date  at  full  length  in  words."4  The 
question  is  also  mooted  by  Mr.  Justice  Story  whether  a 
drawee  may  not  refuse  to  pay  an  undated  bill.5  A  date  is 
now  generally  required  by  foreign  statutes.6     But,  although 

1 55  Geo.  III.  c.  184|  18. 

223  and  24  Vict.  c.  Ill  \  19. 

3 In  California  "a  negotiable  instrument  may  be  with  or  without  a  date" 
(Civ.  Code  1872  %  8091).  "Any  date  may  be  inserted  by  the  maker  *  *  * 
whether  past,  present  or  future,  and  the  instrument  is  not  invalidated  by 
his  death  or  incapacity  at  the  time  of  the  nominal  date"  {lb.  8<>94).  In 
Dakota  the  above-mentioned  provisions  of  the  California  Code  have  been 
copied  (Rev.  Code  1877  l\  1825,  182S). 

4 Chitty  on  Bills  (12th  Am.  Ed.)  171. 

5  Story  on  Bills  §  37. 

6The  date,  including  both  place  and  day,  month  and  year  of  making,  must 
be  stated  in  bills  of  exchange,  drafts  and  promissory  notes  made  payable  to 
order  in  the  Argentine  Republic  (Code  1862  Art  776).  This  article  also  pro- 
vides that  the  want  of  a  date  shall  not  affect  the  validity  between  immedi- 
ate parties;  Austria  (Exch.  Law  1850  Arts.  4,  96);  Belgium  (Code  Napo- 
leon) ;  Bolivia  (Code  Com.  1834  Arts.  362,  463,  469) ;  Brazil  (Code  Com.  1850 
Arts.  354,  427) ;  Chili  (Code  Com.  1865  Arts.  633,  771) ;  Colombia  (Code  Com. 
1853  Arts.  384,  517) ;  Costa  Rica  (Code  Com.  1853  Arts.  373,  510)  ;  Denmark 
(Act  of  1825  p.  74  \  7) ;  Ecuador  (Code  Com.  1829  Arts.  426,  563) ;  France 
(Code  Napoleon  1807  \ :  188,  altering  in  this  respect  the  ordinance  of  1673, 
Art.  1,  Tit.  V.,  which  did  not  so  require) ;  Germany  (Exch.  Law  184S  p.  87 
Arts.  4,  96);  Greece  (Act  of  1835  establishing  the  Code  Napoleon) ;  Guate- 
mala (Ordinances  of  Bilbao  1774  ch.  13  \  2;  ch.  14  I  4) ;  Hayti  (Act  of 
1826  adopting  the  Code  Napoleon);  Holland  (Code  Com.  1838  Arts.  100, 
208,  210);  Honduras  (Ordinances  of  Bilbao,  supra);  Hungary  (Law  of  1860 
ch.  1  I  14) ;  Italy  (Code  Com.  1865  Art.  196) ;  Mexico  (Code  Com.  1854  Art. 


BLANKS.  87 

a  date  is  required  by  the  Code  Napoleon,  the  want  of  it  ren- 
ders the  instrument  invalid  as  commercial  paper,1  but  does 
not  avoid  it. 

§  76.  Blanks — Omission  of  Date. — A  blank  left  intention- 
ally or  inadvertently  by  the  maker  for  the  date,  implies, 
like  every  other  blank,  an  authority  to  the  holder  to  fill 
it  up  ;2  even  after  the  death  of  one  member  of  a  firm  in  whose 
name  the  note  with  blank  date  was  given.3  And  it  is  said 
that  this  authority  extends  even  to  ante-dating  a  note,  so  far 
at  least  as  to  make  it  valid  in  the  hands  of  a  bona  fide  holder;4 
but  not  where  the  holder  has  notice  of  its  being  ante-dated.5 
It  is  to  be  observed,  moreover,  that  inasmuch  as  a  note  or 
bill  is  complete  without  any  date,  the  absence  of  a  date,  even 

223);  Nicaragua  (Code  Com.  1869  Art.  241,  as  to  bills  .it  least);  Paraguay 
(Ordinances  of  Bilbao,  supra)  ;  Peru.  (Law  of  1S53  Art.  381)  ;  Portugal  (Code 
Com.  1833  Art.  426,  as  to  notes  only);  Russia  (Law  of  1S32  Art.  541);  San 
Domingo  (Law  of  1844  adopting  the  Code  Napoleon) ;  Spain  (Code  Com.  1S29 
Arts.  426,  563)  ;  Sweden  and  Norway  (Law  of  1851  eh.  1  §  1,  as  to  Kills  only)  ; 
Switzerland  (Laws:  St.  Gall  1784  Tit.  I.  \  1 ;  Canton  Glarus  1852  §H,  79 ; 
Zurich  1805  Tit.  1  §  1:  Aargau  1857  \  7;  Basle  1863  §  3);  Uruguay  (Coin. 
Code  1865  Art.  789) ;  Venezuela  (Code  Com.  1862  Art.  1).  See,  as  to  the  Code 
Napoleon,  Bedarride's  Droit  Commercial,  vol.  1  p.  79;  and  as  to  the  earlier 
French  law,  Pothier,  Contrat  de  Change,  p.  26;  Story  on  Bills  g  38.  The 
German  statute  requiring  expression  of  time  and  place  of  making  is  satis- 
fied by  a  date  giving  any  time  and  place,  and  does  not  require  the  true  time 
or  place  to  be  given,  but  only  a  time  and  place  (Thol  W.  R.  153, 154).  Issu- 
ing a  check  without  date,  or  with  a  false  date,  is  punishable  by  fine  of  six 
per  cent,  of  the  face  of  the  check  in  France  (Law  of  1865  Art.  6).  In  Zurich 
a  blank  date  is  at  the  risk  of  the  indorser,  as  well  as  an  entire  want  of  date 
(Law  of  1805  §23). 

1  Bedarride,  Droit  Commercial,  vol.  1  p.  79. 

M  Daniel  92;  1  Edwards  H  88,  172;  Story  on  Prom.  Notes  g  II  n.  1;  1 
Parsons  115;  Michigan  Bank  v.  Eldred,  9  Wall.  544  (1869) ;  Page  v.  Morreil, 
3  Keyes  117  (1866) ;  S.  C,  3  Abb.  App.  Dec.  433;  Mitchell  v.  Culver,  7  Cow. 
336  (1*827);  Androscoggin  Bank  v.  Kimball,  10  Cush.  373  (1S52) ;  Lennig  v. 
Ralston,  23  Penna.  St.  137  (1854);  Shultz  v.  Payne,  7  La.  An.  222  (1852); 
Witte  v.  Williams,  8  So.  Car.  290  (1876) ;  Fullerton  v.  Stunres,  4  Ohio  St.  529 
(1855).  And  see  English  Bills  of  Exchange  Act  of  1882  I  12.  And  this  infer- 
ence is  clear  where  the  lull  is  made  payable  a  certain  number  of  days  "  after 
date."  Shultz  V.  Payne,  supra.  And  the  date  may  be  added  in  filling  up  a. 
blank  indorsement,  Maxwell  v.  Van  Sant,  46  111.  58  (1867).  As  to  tilling  a 
blank  date  in  a  deed,  see  Whitting  v.  Daniel,  1  Hen.  &  M.  390  (1807),  where 
the  act  was  held  to  be  an  alteration,  but  immaterial. 

"Usher  v.  Dauncey,  4  Campb.  97  (1814).  But  it,  has  been  held  that  a  blank 
date  cannot  be  filled  after  the  death  of  the  drawer,  Michigan  Ins.  Co.  v. 
Leavenworth,  30  Vt.  11  (1856). 

♦Page  v.  Morreil,  3  Abb.  App.  Dec.  433  (1866) ;  3  Keyes  417. 

51  Parsons  115;  Emmons  v.  Meeker,  55  Ind.  321  (1876);  Goodman  v 
Simonds,  19  Mo.  106  (1853). 


88 


FOEMAL     REQUISITES. 


though  a  blank  has  been  apparently  left  for  it,  is  not  conclu- 
sive, but  only  prima  facie  evidence  of  authority  to  the  holder 
to  insert  a  date.  Whether  there  be  such  authority  is  a  ques- 
tion for  the  jury.1 

§  77.  Delivery  Shown  by  Date — Parol  Evidence. — Like 
other  contracts  a  note  or  bill  takes  effect  only  upon  its  de- 
livery for  that  purpose.2  The  time  of  delivery  is  in  all  cases 
a  question  of  fact  for  the  jury.3  Date  and  delivery  are  often 
spoken  of  as  one  thing.  For  instance,  a  reference  to  date  in 
an  instrument  having  no  expressed  date  can  only  refer,  in 
general,  to  the  time  of  its  delivery.4  If  it  is  delivered  sub- 
sequently to  its  date,  it  goes  into  effect  upon  delivery.5  But 
its  construction,  at  least  in  computing  the  time  it  shall  run, 
is  determined  by  the  date  expressed  and  not  by  the  time  of 

l2  Parsons  552,  565;  Stout  v.  Cloud,  5  Lift.  205  (1824) ;  Inglish  v.  Brene- 
man,  5  Ark.  3S2  (1843) ;  9  lb.  122  (1848).  The  authority  of  this  latter  case 
was  denied,  however,  in  Page  v.  Morrell,  3  Keyes  117. 

21  Daniel  74;  1  Parsons  49;  Story  on  Prom.  Notes  \  56  n.  4;  1  Edwards  \ 
171 ;  Cox  v.  Troy,  5  B.  &  Aid.  474  (1822) ;  Abrev  v.  Crux,  L.  R.  5  C.  P.  42 
(1869) ;  Ex  parte  Hayward,  L.  R.  6  Ch.  App.  546  (1871) ;  Marvin  v.  McCullum, 
20  Johns.  288  (1822) :  Powell  v.  Waters,  8  Cow.  669  (1826) ;  Chamberlain  v. 
Hopps,  8  Vt.  94  (1836);  Woodford  v.  Dorwin,  3  Vt.  82  (1830);  Clough  v. 
Davis,  9  K  H.  500  (1838);  Flanagan  v.  Meyer,  41  Ala.  132  (1867) ;  Hill  v. 
Dunham,  7  Gray  543  (1856) ;  Hilton  v.  Houghton,  35  Me.  143  ;  Smith  v.  Fos- 
ter, 41  N.  H.  215  (1860) ;  Pierce  v.  Richardson,  37  lb.  306  (185S) ;  Fritsch  v. 
Heisler,  40  Mo.  555  (1867.) ;  King  v.  Fleming,  72  111.  21  (1874).  So,  in  the 
language  of  Kent,  C.  J.:  "If  they  had  been  previously  drawn,  they  had  no 
force  while  in  the  possession  and  under  the  control  of  the  maker.  To  all 
legal  purposes  the  notes  are  to  be  considered  as  made  or  drawn  when  they 
were  delivered,"  Lansing  v.  Gaine,  2  Johns.  303  (1807).  It  follows  that  a 
note  dated  before,  and  delivered  after,  a  statute  rendering  it  illegal,  is  con- 
trolled by  the  statute,  Bayley  v.  Taber,  5  Mass.  286  (1809).  Where  the  instru- 
ment is  not  dated,  it  may  be  shown  by  parol  that  it  was  to  take  effect  on 
some  other  day  than  that  of  its  delivery,  if  it  contains  no  express  provi- 
sion as  to  this  point,  Davis  v.  Jones,  17  C.  B.  625  (1856). 

3  Hill  v.  Dunham,  7  Gray  543  (1856). 

4Chitty  171;  Byles  79;  De  la  Courtier  v.  Bellamy,  2  Show.  422;  Hague  v. 
French,  3  Bos.  &  P.  173;  Giles  v.  Bourne,  6  M.  &  S.  73;  Armitt  v.  Breame, 
2  Ld.  Raym.  1076  (1704),  in  construction  of  an  award.  So,  in  construction 
of  a  covenant,  "  when  there  is  no  date  or  an  impossible  date,  that  word  must 
mean  delivery,"  Bayley,  J.,  in  Styles  v.  Wardle,  4  B.  &  C.  908  (1825).  See, 
too,  Seldonridge  v.  Connable,  32  Ind.  375  (1869). 

5 If  a  partnership  note  be  delivered  after  the  dissolution  of  the  firm, 
although  drawn  and  dated  before,  it  cannot  relate  back  so  as  to  bind  a 
partner  having  no  share  in  making  or  delivering  it,  Woodford  v.  Dorwin,  3 
Vt.  S2  (1830).  The  same  principle  applies  where  between  date  and  delivery 
a  statute  is  passed  prohibiting  such  instrument,  Bayley  v.  Taber,  5  Mass.  286 
(1809). 


DELIVERY   SHOWN    BY    DATE.  89 

delivery.1  Where,  on  the  other  hand,  a  note  is  made  payable 
so  many  days  from  date,  and  no  date  is  expressed,  it  falls 
due  so  many  days  from  its  delivery,  and  parol  evidence  is 
admissible  to  show  when  that  was.2  If  the  time  of  delivery 
cannot  be  ascertained,  the  time  when  its  legal  existence  can 
first  be  proved  will  be  taken  to  be  the  time  of  its  date  or 
delivery.3 

Where  there  is  a  date  expressed  in  the  instrument,  this  is 
prima  facie  evidence  of  the  time  of  its  delivery.4  But  bank 
notes,  which  are  frequently  re-issued,  are  an  exception  to  this 

n  Edwards  ?  171 ;  1  Parsons  49 ;  Powell  v.  Waters,  8  Cow.  669  (1826) ;  Luce 
v.  Shoff,  70  Ind.  152  (1880).  So,  where  a  note  was  made  payable  six  months 
after  date  and  post-dated  one  year,  Bumpass  v.  Timms,  3  Sneed  459  (Tenn. 
1856). 

'Richardson  v.  Ellett,  10  Tex.  190  (1853).  To  the  same  effect  as  to  parol 
evidence,  see  Bvles  123;  Story  on  Bills  \  37;  Davis  v.  Jones,  25  L.  J.  C.  P. 
91 ;  S.  C,  17  C.  B.  625;  Giles  v.  Bourne,  6  M.  &  S.  73  (1817).  In  like  manner 
the  real  date  of  an  undated  acceptance  may  be  shown  by  parol,  Kenner  v. 
Creditors,  10  Mart.  17  (La.  1829).  But  an  indorser,  whose  indorsement  bears 
no  date,  cannot  set  up  that  it  was  made  on  Sunday  and  therefore  not  bind- 
ing upon  him,  in  defense  to  an  action  brought  by  a  subsequent  accommoda- 
tion indorser  without  notice,  Greathead  v.  Walton,  40  Conn.  226  (1873). 

31  Parsons  3S7 ;  Story  on  Prom.  Notes  \  45.  In  Mahier  v.  Le  Blanc,  12 
La.  An.  207  (1857),  a  draft  with  a  date,  but  by  Louisiana  law  undated  be- 
cause not  formally  executed  before  a  notary  but  sows  seing  prive,  was  held 
insufficient  to  support  a  judgment  rendered  on  it  before  the  date  of  protest, 
that  date  being  considered  the  first  legal  evidence  of  its  existence. 

*Byles  79;  Chitty  171;  1  Edwards  |  174;  1  Parsons  41,  49;  Chalmers  Dig. 
17;  Roberts  v.  Bethell,  12  C.  B.  778  (1852);  Anderson  v.  Weston,  6  Bing.  N. 
C.  296 ;  S.  C,  8  Scott  893 ;  Tavlor  v.  Kinloch,  1  Stark.  175  ;  01  .hard  v.  Betham, 
1  Moo.  &,  M.  486;  Smith  v.  Battens.  1  Moo.  &  R.  341;  Cowing  v.  Altman,  71 
N.  Y.  435  (1877),  reversing  5  Hun  556  ;  Sayre  v.  Wheeler,  31  Iowa  112  (1870) ; 
Emery  v.  Vinall,  26  Me.  295  (184*5).  And  the  same  is  true  of  an  account 
stated.  Sinclair  v.  Baggaley,  4  M.  ifc  W.  312  (1838) ;  and  of  a  book  account 
showing  a  sale  of  personalty,  Bustin  v.  Rogers,  11  Cush.  346  (1853),  and  of  a 
deed,  Lyerly  v.  Wheeler,  12  Ind.  290  (1851).  But  see,  Cowie  v.  Harris,  1  M. 
&  M.  141,  and  Rose  v.  Rowcroft,  4  Campb.  245,  overruling  this  doctrine  as  to 
third  persons,  so  far  as  commercial  paper  is  concerned.  And  this  presump- 
tion does  not  extend  to  the  bill  of  a  bankrupt  to  prove  the  date  of  his  debt 
under  the  English  bankruptcy  act,  Anderson  v.  Weston,  xu]>nt.  Between 
parties,  however,  this  principle  is  so  far  true  that  where  a  note  bore  date  on 
Thursday,  and  there  was  evidence  of  its  being  signed  on  Sunday,  but  no 
evidence  as  to  the  time  of  its  delivery,  the  presumption  of  validity  arising 
out  of  its  date  sustained  it  as  a  valid  instrument,  Dohoney  v.  Dohoney,  7 
Bush  217  (1870).  As  Sunday  by  the  statute  of  Massachusetts  extends  only 
from  midnight  to  sunset,  a  note  dated  on  Sunday  is  not  necessarily  made 
within  the  hours  of  the  legal  Sunday,  nor,  it  seems,  is  there  a  presumption 
to  that  effect,  Hill  v.  Dunham,  7  Gray  543  (1856);  Nason  v.  Dinsmore,  34 
Me.  391  (1852).  And  see,  Ray  v.  Catlett,  12  B.  Mon.  532  (1851),  as  to  the 
particularity  required  in  Kentucky  in  pleading  that  a  note  was  executed 
and  delivered  on  Sunday. 


90  FORMAL     REQUISITES. 

rule.1  The  court  will  take  notice  of  the  day  of  the  week  on 
which  a  given  date  falls.2  The  date  of  a  note  is  also  prima 
facie  the  date  of  an  undated  indorsement.3  On  the  other 
hand,  where  an  impossible  date  (e.  g.  September  31st)  is  ex- 
pressed, the  last  day  of  the  month  is  assumed  to  be  the  date 
intended.4  But  where  a  bill  of  exchange  was  dated  on  Sun- 
day, it  was  held,  in  favor  of  an  undated  acceptance,  that 
there  was  no  presumption  of  the  acceptance  having  been 
made  on  that  day.5  And  the  date  is  in  no  case  conclusive 
upon  the  immediate  parties,  but  delivery  may  be  shown  to 
have  been  made  upon  some  other  day.6  Where  a  firm  note, 
dated  before,  was  given  after  dissolution  of  the  partnership, 
that  fact  may  be  shown  in  defense  by  the  outgoing  partner/ 
§  78.  Mistake  in  Date. — It  is  also  true  that  a  mistake  of 
date  may  be  shown  between  immediate  parties.8  So,  it  may 
be  shown  that  an  instrument  dated  on  Sunday  was  really 
delivered  on  another  day  and  therefore  valid;9  and  in  like 

1  Wright  v.  Douglass,  3  Barb.  55-1  (1848);  Farmers'  and  Mechanics'  Bank 
v.  White,  2  Sneed  482  (Tenn.  1855) ;  Greer  v.  Perkins,  5  H'lmph.  588  (1S45). 

2Chrisman  v.  Tuttle,  59  Ind.  155  (1877).  So,  as  to  the  calendar  in  general, 
Reed  v.  Wilson,  12  Vroom  29  (1879),;  9  Cent.  L.  J.  304,  s.  c.  But  see,  Hill  v. 
Dunham,  7  Gray  543  (1856),  in  which  case  it  was  left  for  the  jury  to  deter- 
mine whether  a  note  was  made  before  or  after  sunset,  that  being  the  end  of 
the  statutory  Sunday. 

sBurnham  v.  Webster,  19  Me.  232  (1841) ;  Dodd  v.  Dody,  98  111.  393  (1881). 
If,  however,  the  indorsement  was  actually  made  afterward,  this  presump- 
tion will  not  make  it  relate  back  to  the  date  of  the  note,  Brown  v.  Hull,  33 
Gratt.  23  (1880).  In  like  manner  the  date  of  an  indorsement  of  payment  is 
prima  facie  evidence  of  the  time  of  such  payment,  Clapp  v.  Hale,  112  Mass. 
368  (1873);  Carter  v.  Carter,  44  Mo.  195  (1869).  But  see,  contra,  Shatter  v. 
Shaffer,  41  Penna.  St.  51  (1861).  And  in  general  the  date  of  the  note  is  prima 
facie  evidence  of  the  time  of  accrual  of  the  debt,  Milliken  v.  Whitehouse, 
411  Me.  527  (1860). 

41  Parsons  409,  citing  Wagner  v.  Kenner,  1  Rob.  La.  120.  But  see,  Styles  v. 
W  a  idle,  4  B.  &  C.  908  (1825). 

5Begbie  v.  Levi,  1  Cromp.  &  J.  180  (1830). 

61  Parsons  41 ;  2  lb.  514 ;  Cowing  v.  Altman,  71  N.  Y.  435  (1877),  reversing 
5  Hun  556;  Breck  v.  Cole,  4  Sandf.  80  (1850) ;  Aldridge  v.  Branch  Bank,  17 
Ala.  45  (1849) ;  Drake  v.  Rogers,  32  Me.  521  (1851)  ;  Dean  v.  De  Lezardi,  24 
Miss.  424  (1852). 

7  Woodford  v.  Dorwin,  3  Vt.  82  (1830). 

8  Buck  v.  Steffey,  65  Ind.  58  (1878) ;  McSparran  v.  Neelv,  91  Penna.  St.  17 
(1879);  Germania  Bank  v.  Distler,  4  Hun  633  (1875);  Drake  v.  Rogers.  32 
Me.  524  (1851).  Although  such  correction  will  alter  the  time  tor  maturity 
of  the  note,  Drake  v.  Rogers,  supra. 

"Clousih  v.  Davis,  9  N.  H.  500  (1838) ;  Lovejoy  v.  Whipple.  18  Vt.  37:>  (1846) ; 
Goss  v.  Whitney,  24  lb.  187(1852):  Aldridge  v.   Branch   Bank,  17   Ala.    15 


MISTAKE    IX    DATE.  91 

manner  that  an  instrument  was  really  executed  on  Sunday 
and  illegal,  although  dated  on  Monday.1  An  erroneous  date 
may  be  corrected  by  a  memorandum  on  the  back  or  margin 
of  the  instrument,  e.  g.  a  memorandum  showing  that  the  year 
1855  was  intended  instead  of  1854.2 

But  parol  evidence  is  not  admissible  to  prove  a  mistake  in 
date  in  a  suit  brought  by  an  innocent  purchaser  and  to  his 
disadvantage.3  Thus,  a  note  dated  on  Monday  is  good  in 
the  hands  of  a  bona  fide  holder,  although  really  executed 
and  delivered  on  Sunday,  and  the  illegal  delivery  cannot  be 
proved  against  such  holder.4  It  may,  however,  be  shown 
even  against  such  holder  that  the  note  was  ante-dated,  where 
this  was  done  for  the  purpose  of  fraudulently  evading  a 
statute  prohibiting  such  a  note.5  Parol  evidence  is  also  ad- 
missible to  correct  a  misdescription  of  date,  e.  g.  where  a 

(1S49) ;  Drake  v.  Rogers,  32  Me.  524  (1851) ;  Marshall  v.  Russell.  44  N.  H.  509 
(1863 1 ;  Stacv  v.  Kemp,  97  Mass.  166  (1867);  Hilton  v.  Houghton,  35  Me. 
143  (1853) ;  King  v.  Fleming,  72  111.  21  (1874) ;  Smith  v.  Bean,  15  N.  H.  577 
(1844).  And  in  like  manner  it  may  be  shown  that  a  note  executed  on  Sun- 
day was  not  delivered  until  Wednesday,  Fritsch  v.  Heisler,  40  Mo.  455  (1867) ; 
King  v.  Fleming,  supra.  And  where  the  presumption  of  an  indorsement  on 
Sunday  arose  from  a  delivery  on  that  day  of  a  note  dated  on  Monday,  the 
indorsement  may  be  proved  to  have  been  made  on  another  day,  in  order  to 
follow  out  the  Arkansas  rule  of  favorable  construction  of  assignments, 
Trieber  v.  Commercial  Bank,  31  Ark.  128  (1876).  "All  blank  assignments 
shall  be  taken  to  have  been  made  on  such  day  as  shall  be  of  most  advantage 
to  the  defendant,"  Gantt's  Dig.  Ark.  I  570. 

JBank  of  Cumberland  v.  Mayberry,  48  Me.  198  (1859) ;  Allen  v.  Deming, 
14  N.  H.  133  (1843). 

2Byles  101 ;  Fitch  v.  Jones,  5  El.  &  Bl.  238;  Fanshawe  v.  Pelt,  2  Hurlst.  & 
N.  1.  See,  too,  Brutt  v.  Picard,  Ry.  &  Mood.  37  (1824)  ;  Van  Brunt  v.  Eoff, 
35  Barb.  501  (1861). 

31  Daniel  93;  1  Parsons  388;  Huston  v.  Young,  33  Me.  85  (1851  i;  tlie 
maker  of  a  note  dated  in  1847  and  payable  in  two  years  from  date  not  being 
permitted  to  prove,  at  suit  of  a  bona  fide  holder,  that  the  note  was  actually 
made  in  1848  and  therefore  not  yet  due.  Nor  can  the  make]1  of  a  note  dated 
at  Boston  show  against  a  bona  fide  holder  for  value  that  it  was  really  made 
in  New  York  and  therefore  void  for  usury,  Towne  v.  Rice,  122  Mass.  67 
(1877). 

*Clinton  Nat.  Bank  v.  Graves,  48  Iowa  228  (1878);  Cranson  v.  Goss,  107 
Mass.  439  (1871) ;  Greathead  v.  Walton,  40  Conn.  226  (1873)  ;  Bank  of  Cum- 
berland v.  Mayberry,  48  Me.  198(1859);  State  Capitol  Bank  v.  Thompson, 
42  N.  H.  369  (1861);  Knox  v.  Clifford,  3S  Wis.  651  (1875);  Vinton  v.  Peck, 
14  Mich.  2S7  (1866) ;  Ball  v.  Powers,  62  Ga.  757  (1S79).  And,  a  fortiori,  where 
it  was  dated  and  delivered  on  Monday  and  only  signed  on  Sunday,  King  v. 
Fleming,  72  111.  21  (1874).  But  to  entitle  the  holder  to  recovery  in  such 
case  the  burden  of  proof  of  good  faith  lies  on  him,  Allen  v.  Deming.  14  N 
H.  133  (1S43). 

5Bayley  v.  Taber,  5  Mass.  286  (1809). 


92  FORMAL     REQUISITES. 

mortgage  securing  the  note  described  it  as  dated  March  15th, 
and  it  was  drawn  March  loth  but  actually  dated  and  deliv- 
ered March  24th.1 

§  79.  Ante-dating — Post-dating. — In  general  a  bill  or  note 
may  be  ante-dated  or  post-dated  at  the  pleasure  of  the  drawer 
or  maker.2  But  it  is  not  within  the  authority  of  a  partner 
to  give  a  post-dated  firm  check.3  And  by  English  statute 
uustamped  bank  bills  or  notes  cannot  be  post-dated  under  a 
penalty  of  £100.*  And  all  negotiable  bills,  notes  and  drafts 
under  £5  must,  in  Great  Britain,  be  dated  before  or  on  the 
day  of  making,  under  a  penalty  of  £20.5  In  general  an 
ante-dated  note  is  sufficiently  proved  by  proof  of  its  execu- 
tion without  proof  of  the  date  of  execution,  although  it  be 
shown  to  have  been  ante-dated.6  Ante-dating  or  post-dating 
an  instrument,  however,  for  a  fraudulent  purpose  renders  it 
invalid ;  e.  g.  dating  a  bill  forward  to  evade  the  stamp 
duties;7  or  ante-dating  it  to  evade  a  prohibitory  law;8  or  a 
statute  against  usury.9     But  the  mere  fact  that  the  instru- 

'Dean  v.  De  Lezardi,  24  Miss.  424  (1852). 

2Byles79;  Chalmer's  Dig.  16;  1  Daniel  93;  1  Edwards  §  173;  1  Parsons 
41 ;  Story  on  Prom.  Notes  \  48;  Pasmore  v.  North,  13  East  517  (1811) ;  Usher 
v.  Dauncey,  4  Campb.  97  (1814) ;  Barker  v.  Sterne,  9  Exch.  6S4  (1854),  ante- 
date ;  Gatty  v.  Fry,  L.  R.  2  Exch.  Div.  265  (1877),  post-dated  cheek  ;  Forster 
v.  Mackreth,  L.  R.  2  Exch.  163  (1867) ;  Emmanuel  v.  Roberts,  9  B.  &  S.  121 ; 
Bull  v.  O'Sullivan,  L.  R.  6  Q.  B  209  (1871) ;  Dean  v.  De  Lezardi,  24  Miss.  424 
(1852) ;  Aldridge  v.  Branch  Bank,  17  Ala.  45  (1849)  ;  Bayley  v.  Taber,  5  Mass. 
286  (1809);  Drake  v.  Rogers,  32  Me.  521  (1851);  Brewster  v.  McCardel,  8 
Wend.  478  (1832) ;  Richter  v.  Selin,  8  S.  &  R.  425  (1822) ;  Grav  v.  Wood,  2 
Harr.  &  J.  32S  (1808);  Luce  v.  Shoff.  70  Ind.  152  (1880);  Union  Bethel  v. 
Sheriff,  33  La.  An.  1461  (1881).  This  is  true  of  checks  also,  Frazier  v.  Trow 
Printing  Co.,  24  Hun  281  (1881) ;  Gatty  v.  Fry,  L.  R.  2  Exch.  Div.  265  (1S77). 
See,  too,  English  Bills  of  Exchange  Act  1882  \  13. 

3  Forster  v.  Mackreth,  L.  R.  2  Exch.  163  (1867). 

4  9  Geo.  IV.  c.  23  §  12 ;  Byles  80. 

5Byles  80;  17  Geo.  III.  c.  30,  revived  by  7  Geo.  IV.  c.  6;  repealed  as  to 
checks  by  17  and  18  Vict.  c.  83  \  9 ;  temporarily  repealed  by  26  and  27  Vict. 
c.  105,  32  and  33  Vict.  c.  85,  34  and  35  Vict.  c.  95,  and  38  and  39  Vict.  c.  72. 

6 Gray  v.  Wood,  supra. 

7 Byles  80;  1  Daniel  94;  as  to  stamp  act,  Field  v.  Wood,  6  Dowl.  P.  C.  23; 
S.  C,  7  Ad.  &  El.  114;  Serle  v.  Norton,  9  M.  &  W.  309.  But  where  a  deed 
was  executed  on  Sunday  and  ante-dated  as  of  Saturday,  although  void  on 
this  account,  it  was  held  capable  of  ratification  and  validated  thereby, 
Love  v.  Wells,  25  Ind.  503  (1865). 

8 Bayley  v.  Taber,  5  Mass.  286  (1809). 

9  Williams'  Exr.  v.  Williams,  3  Green  255  (N  J.  1S36).  But  where  a  note 
was  given  for  a  loan  made  in  Georgia  to  a  citizen  of  that  State  at  a  rate  of 


POST-DATED    CHECKS.  93 

ment  is  post-dated  throws  no  suspicion  upon  the  good  faith 
of  a  purchaser.1  Nor  does  it  subject  a  bill  to  such  a  defense 
as  want  of  consideration,  where  that  would  not  be  otherwise 
admissible.2  And  if  a  bill  or  note  be  post-dated  and  one  of 
the  parties  to  it  die  before  the  day  of  its  date  arrive,  it  will 
still  be  valid  in  the  hands  of  a  bona  fide  holder  for  value.3 

§  80.  Post-dated  Checks. — A  check  should  be,  and  com- 
monly is,  made  payable  forthwith.  If  it  is  payable  at  a 
future  day,  it  is,  properly  speaking,  a  bill  of  exchange  and 
not  a  check  ;4  unless  this  is  rather  apparent  than  real,  as  in 
the  case  of  a  check  drawn  after  business  hours  on  Saturday 
and  dated  on  Saturday  but  made  payable  on  Monday.6  In 
like  manner  a  post-dated  check  is  to  all  intents  and  purposes 
a  bill  of  exchange,6  and  should  be  stamped  as  such  in  Eng- 
land. The  English  Stamp  Act  formerly  prescribed  penalties 
for  post-dating  checks  payable  to  bearer  on  demand.7  Under 
this  act  such  post-dated  checks  were  until  1870  void  in 
the  hands  of  original  parties  and  subsequent  holders  with 
notice,8  and  were  not  even  admissible  in  such  case  as  evidence 
of  money  paid  ;9  but  were  valid  in  the  hands  of  a  bona  fide 

interest  lawful  there  and  the  note  was  signed  by  one  of  the  parties  in  North 
Carolina,  where  such  rate  was  usurious,  dating  it  as  if  made  in  Georgia  was 
Teld  to  be  no  evasion  of  the  North  Carolina  usury  law,  Davis  v.  Coleman,  7 
"red.  424  (1847). 

Brewster  v.  McCardel,  8  Wend.  478  (1832). 

'Walker  v.  Geisse,  4  Whart.  252  (1838). 

3Chitty  172;  1  Parsons  42;  Passmore  v.  North,  13  East  517. 

4  Morrison  v.  Bailev,  5  Ohio  St.  13  (1855) ;  Bowen  v.  Newell,  8  N.  Y.  190 
(1853),  reversing  5  Sandf.  326;  and  see,  S.  C,  2  Duer  584;  13  N.  Y.  291; 
Minturn  v.  Fisher,  4  Cal.  35  (1854).  But  see,  contra,  Brown  v.  Lusk,  4  Yerg. 
210  (1833). 

5  Andrew  v.  Blachley,  11  Ohio  St.  89  (1860). 

6Allen  v..  Keeves,  1  East  435  (1801) ;  Bradley  v.  Delaplaine,  5  Harr.  305 
(Del.  1850). 

7  By  the  stamp  act  of  55  Gen.  III.  c.  184  §  13  (now  repealed)  checks  pay- 
able to  bearer  on  demand  were  made  subject  to  a  penalty,  if  post-dated,  to 
be  enforced  against  the  drawer  and  against  any  one  knowingly  taking  or 
paying  the  same.  These  penalties  were  continued  in  force  bv  16  and  17 
Vict.  c.  59  \  2 ;  but  are  now  repealed  by  33  and  34  Vict.  c.  99  (1870). 

8Dunsford  v.  Curlewis,  1  Fost.  &  F.  702;  Serle  v.  Norton,  9  M.  &  W.  309 
(1842) ;  Austin  v.  Bunyard,  6  B.  &  S.  085  (1865) ;  Whitwell  v.  Bennett,  3  Bos. 
&  P.  559  (1803). 

•Serle  v.  Norton,  9  M.  &  W.  309  (1842). 


94  FORMAL     REQUISITES. 

holder  without  notice.1  But  now,  since  1870,  s,uch  check,  if 
stamped,  is  admissible  in  evidence,  even  where  the  holder 
has  notice  of  its  being  post-dated.2  And  the  act  of  55  Geo. 
III.,  c.  184,  never  affected  post-dated  checks  which  were 
payable  to  order?  A  post-dated  check  being  to  all  intents 
and  purposes  a  bill  of  exchange,  as  we  have  seen,  is  payable 
only  when  the  future  day  of  its  date  arrives  and  is  then 
payable  on  demand.4  And  it  is  not  by  the  law  merchant 
entitled  to  grace.5 

§  81.  Local  Date. — It  is  usual  to  express  the  place  as  well 
as  the  time  of  making  in  the  date  of  all  commercial  paper, 
and,  as  we  have  seen,  this  is  required  by  many  foreign  stat- 
utes. It  was  also  formerly  required  by  the  English  statutes 
of  55  Geo.  III.,  c.  184,  and  9  Geo.  IV.,  c.  49,  so  far  as  re- 
garded the  exemption  of  checks  from  stamp  duty.  At  com- 
mon law  this  was  not  necessary,6  nor  is  it  made  so  by  statute 
in  the  United  States.  Where  such  place  is  expressed  it  is 
prima  facie  the  place  of  residence  of  the  maker  or  drawer.7 
A  note  without  other  place  of  payment  named  is  not  thereby 
made  payable  at  the  place  named  in  the  date.8     But  in  the 

'Austin  v.  Bunyard,  6  B.  &  S.  685  (1865). 

2Gatty  v.  Fry,  L.  R.  2  Exch.  D.  265  (1877) ;  33  and  34  Vict.  c.  97  |  17. 

3  Emanuel  v.  Roberts,  9  B.  &  S.  121;  Whistler  v.  Forster,  14  C.  B.  (n.  s.) 
248;  Bull  v.  O'Sullivan,  L.  R.  6  Q.  B.  209  (1871). 

4Hill  v.  Gow,  4  Penna.  St.  493  (1846);  Mohawk  Bank  v.  Broderick,  10 
Wend.  305  (1833);  affirmed  13  lb.  133;  Salter  v.  Burt,  20  lb.  205(1838); 
Gnugh  v.  Staats,  13  lb.  549  (1835) ;  Taylor  v.  Sip,  1  Vroom  289  (1863). 

5  2  Parsons  68. 

*  1  Edwards  \  171;  Story  on  Prom.  Notes  \  49. 

'Duncan  v.  McCullough,  4  S.  &  R.  480  (1818) ;  Sasscer  v.  Whitely,  10  Md. 
98  ( 1S56) ;  Branch  Bank  v.  Pierce,  3  Ala.  321  (1842) ;  Robinson  v.  Hamilton, 
1  Stew.  &  P.  91  (1833; ;  Chapman  v.  Lipscombe,  1  Johns.  294  (1806) ;  Taylor 
v.  Snyder,  3  Den.  145  (1846).  See,  too,  Hyatt  v.  James,  2  Bush  463  (1867)  ; 
Sprague  v.  Tyson,  44  Ala.  33S  (1870).  So  far  at  least  as  to  lead  one  to  sup- 
pose that  the  maker  "might  be  found  there,"  Pierce  v.  Whitney,  22  Me.  113 
(1842).  But  this  has  been  denied  in  Pennsylvania  and  such  place  held  to 
indicate  the  place  of  drawing  the  instrument  and  nothing  more,  Lightner 
v.  Will,  2  Watts  &  S.  140  (1841). 

8Anderson  v  Drake,  14  Johns.  114  (1817) ;  Bank  of  America  v.  Woodworth, 
18  lb.  322  (1S20) ;  Galpin  v.  Hard,  3  McCord  394  (1825) ;  Burrows  v.  Hanne- 
gan,  1  McLean  309  (1838);  Taylor  v.  Snyder,  3  Den.  145  (1846);  Pierce  v., 
Whitney,  29  Me.  188  (1848).  And  if  dated  in  one  place,  parol  evidence  may 
show  another  place  of  payment  to  have  been  intended,  Thompson  v. 
Ketchum,  4  Johns.  285  (1809). 


LOCAL     DATE.  ^O 

absence  of  other  proof  of  residence,  it  may  be  used  as  evi- 
dence of  the  place  where  the  note  is  payable  and  demand 
should  be  made  there.1  To  send  notice  of  dishonor  there, 
however,  for  the  maker  or  drawer  is  a  want  of  due  diligence, 
if  he  resides  elsewhere,2  and  his  actual  residence  can  be  as- 
certained by  reasonable  diligence.3 

The  law  of  the  place  where  the  contract  is  made,  in  gen- 
eral governs  its  construction  and  determines  its  le°;alitv. 
This  is  true  not  only  where  no  place  of  date  is  expressed,4 
but  also  where  there  is  an  expressed  date  which  differs  from 
the  place  of  delivery.5  In  the  latter  case  the  place  of  de- 
livery governs.  So,  too,  where  there  is  no  place  named  in 
the  date.6  The  place  named  in  the  date  is  prima  facie  evi- 
dence of  the  place  where  the  note  was  made  and  of  the  place 
where  it  was  indorsed.7  In  the  absence  of  place  of  date  and 
of  other  evidence  of  place  of  delivery,  the  maker's  residence 
is  prima  facie  the  place  of  delivery.8     So,  too,  the  indorser's 

xl  Parsons  442,  458;  Moodie  v.  Morrall,  1  Mills  367  (S.  C.  1817). 

'1  Parsons  453,  458;  1  Edwards  \  175;  Fisher  v.  Evans,  5  Binn.  541  (1813) ; 
Burrows  i\  Hannegan,  1  McLean  309  (1838).  But  see,  contra,  Hepburn  v. 
Tnledans,  5  Mart.  316  (La.  1822).  See  also,  Mann  v.  Moors.  Ry.  &  Mood.  246 
(1825).  And  such  notice  is  sufficient  if  he  have  a  house  there,  although  he 
may  have  another  house  elsewhere  in  the  country.  Stewart  v.  Eden,  2  Cai. 
12L  (1804.).  So,  if  he  is  thought  to  reside  elsewhere  l>ut  his  residence  can- 
not he  ascertained  after  due  diligence,  Chapman  v.  Lipscombe,  1  Johns.  ii(.»4 
(1806).  But  if  dated  in  New  York  and  maker  known  to  have  removed  to 
another  place  known  to  the  holder,  demand  in  New  York  is  insufficient, 
Anderson  v.  Drake,  14  Johns.  114  (1817). 

'Foard  v.  Johnson,  2  Ala.  565  (1841);  Hill  v.  Varrell,  3  Me.  233  (1825)  ; 
Mason  v.  Pritchard,  9  Heisk.  793  (1872)  ;  Nailor  v.  Bowie,  3  Md.  251  (1852) ; 
Sprague  v.  Tyson,  44  Ala.  338  (1870). 

4 Evans  v.  Anderson,  78  111.  558  (1875). 

5Hart  v.  Wills,  52  Iowa  50  (1879) ;  Second  Nat.  Bank  v.  Smoot,  2  MacArth. 
371  (1876);  Overton  v.  Bolton,  9  Heisk.  762  (1S72).  And  in  Lennig  v.  Rals- 
ton, 23  Penna.  St.  137  (1854),  a  l>ill  of  exchange,  drawn  and  dated  at  Phila- 
delphia with  the  intention  of  making  it  a  Pennsylvania  contract,  was  held 
to  be  governed  by  the  laws  of  Pennsylvania,  although  sent  to  London  with 
the  day  and  year  of  date  left  Ua.uk  and  filled  there.  But,  as  we  have  seen, 
a  note  dated  at  Boston  cannot  he  shown  by  parol  evidence  against  a  bona  fide 
holder  for  value  to  have  heen  delivered  in  New  York,  where  it  would  be 
void  for  usury,  Towne  v.  Rice,  122  Mass.  07  (1877). 

6 Hyde  v.  Goodnow,  :'>  N.  Y.  266  (1850). 

'See  Hall  v.  Harris,  16  Ind  180  ( 186] ).  as  to  making  ;  Patterson  v.  Carrell, 
60  Ind.  128  (1877),  as  to  making  and  indorsemenl  But  it  will  not  be  pre- 
sumed from  the  words  "Berne.  June  18th,  1856,"  at  the  end  of  a  note  thai 
it  was  executed  in  a  foreign  country,  Farnhi  v.  Rmnsee   19  tnd  400(1862). 

"Harmon  i>.  Wilson.  1  Duv.  322  (1864) 


96  FORMAL     REQUISITES. 

residence  is  presumed  to  be  the  place  of  an  undated  indorse- 
ment.1 And  in  the  absence  of  other  evidence  the  place  where 
the  action  was  brought  was  held  to  be  prima  facie  the  place 
of  delivery.2  Such  presumption,  however,  is  not  made  when 
its  result  would  be  to  make  the  contract  illegal  and  void  by 
statute.3 

§  82.  Date  of  Indorsement. — What  has  been  said  of  the 
date  of  bills,  notes  and  checks  applies  in  general  also  to  the 
contracts  of  indorsement  and  acceptance.  The  expression 
of  a  date  is  not  necessary  at  common  law  to  an  indorsement.* 
And  it  is  not  usual  to  express  such  date  either  in  England  or 
in  the  United  States.  It  is,  however,  usual  in  most  foreign 
countries  and  in  many  is  required  by  statute.5     In  the  United 

•Simpson  v.  White,  40  N.  H.  540  (1860). 

"Indianapolis  Piano  Mfg.  Co.  v.  Caven,  53  Ind.  258  (1876).  And  this  pre- 
sumption was  strengthened  in  the  case  of  an  indorser  by  the  addition  to  his 
signature  of  the  words  "La  Porte;  Ind.,"  Rose  v.  Thames  Bank,  15  Ind.  292 
(1860). 

'American  Ins.  Co.  v.  Woodruff,  84  Mich.  6  (1876) ;  American  Ins.  Co.  v. 
Cutler,  36  lb  261  (1877).  But  dating  a  note  in  Georgia  is  no  evasion  of  the 
usury  law  of  North  Carolina,  where  it  was  signed  by  one  of  the  parties,  if 
the  note  was  given  for  a  loan  made  in  Georgia  to  a  citizen  of  that  State  and 
lawful  there,  Davis  v.  Coleman,  7  Ired.  424  (1847). 

♦Sanger  v.  Sumner,  13  Ark.  280  (1853). 

BIt  is  required  by  statute  that  all  indorsements  should  he  dated  in  Belgium 
(see  Code  Napoleon) ;  Brazil  (Code  Com.  1850  Art.  361) ;  Chili  (Code  Com. 
1865  Art.  658,  although  a  blank  indorsement  without  date  implies  a  con- 
sideration and  is  sufficient  to  effect  a  transfer,  Art.  661) ;  Colombia  (Code 
Com.  1853  Art.  424) ;  Costa  Rica  (Code  Com.  1853  Art.  414) ;  France  (Code 
Napoleon  1807  1 137) ;  Greece  (see  Code  Napoleon) ;  Hayti  (Law  of  1826  taken 
from  Code  Napoleon)  ;  Hungary  (Exch.  Law  1860  ch.  1  \  30) ;  San  Domingo 
(Code  Napoleon  since  1844);  Ecuador  (Spanish  Code  since  1829);  Mexico 
(Code  Com.  1854  Art.  360) ;  Nicaragua  (Code  Com.  1869  Art.  261) ;  Portugnl 
(Code  Com.  1833  Art.  355) ;  Russia  (Exch.  Law  1832  Art.  559) ;  Salvador  (Code 
Com.  1855  Art.  421) ;  Switzerland  (Geneva,  Code  Napoleon) ;  Spain  (Code 
Com.  1829  Art.  467) ;  Turkey  (Code  Com.  1850  Art.  94) ;  Uruguay  (Code  Com. 
1865  Art.  822) ;  Venezuela  (Code  Com.  1862  Art.  34).  The  French  ordinance 
of  1673  also  required  an  indorsement  to  be  dated  (Bedarride,  vol.  1  p.  452)  ; 
and  without  date  it  amounted  only  to  a  power  to  collect  and  not  a  transfer 
(lb. ;  Pothier,  Contr.  de  Change  40).  In  Holland  an  indorsement  cannot  be 
ante-dated  (Com.  Code  1838  Art.  13S).  In  Italy  a  date  does  not  vitiate  the 
indorsement  (Code  Com.  1865  Art.  223).  In  Zurich  the  omission  of  a  date 
is  at  the  indorser's  risk  (Law  1805  \  23).  In  Germany  and  Austria  a  date  is 
unnecessary  (Thol  W.  R,  436). 

Where  an  indorsement  is  ante-dated,  the  indorser  is  liable  for  damages 
and  further,  in  case  of  fraud,  to  punishment  as  for  forgery  in  Spain  (Code 
Com.  1829  Art.  470) ;  Colombia  (Code  Com.  1853  Art.  427^ ;  Costa  Rica  (Code 
Com.  1853  Art.  417) ;  Holland  (Exch.  Law  1838  Art.  138)  ;  Ecuador  (Law  of 
1829,  same  as  Spain) ;  Peru  (Code  Com. .1853  Art,  428) ;  Salvador  (Code  Com. 
1855  Art.  424).     So,  as  to  all  false  dating  of  an  indorsement  in  Mexico  (Code 


DATE    OF    INDORSEMENT.  97 

States  the  date  of  an  indorsement  has  even  been  held  so  im- 
material a  part  that  its  alteration  does  not  affect  the  rights 
of  the  indorsee.1  The  date  of  an  indorsement,  like  that  of  a 
note,  is  prima  facie  evidence  of  the  time  of  making  it,  but 
circumstances  may  throw  the  burden  of  proof  on  the  holder.2 
If  the  indorsement  is  not  dated,  the  date  of  the  note  is  prima 
facie  that  of  the  indorsement  also.3  Other  cases  limit  this 
presumption  so  as  to  imply  only  that  the  indorsement  was 
made  before  maturity.4 

In  all  such  cases  of  an  undated  indorsement  evidence  is 
admissible  to  prove  the  real  date.5  And  the  presumption  of 
indorsement  before  maturity  is  not  rebutted  by  evidence 
merely  of  the  payee's  declarations  to  the  contrary.6  But 
where  one  holds  without  any  indorsement  and  was  not  known 
as  the  holder  until  after  the  maturity  of  the  paper  and  when 
the  paper  at  its  maturity  was  in  other  hands,  the  presump- 

Com.  1854  Art  363).  Ante-dating  of  indorsements  is  also  forbidden  under 
penalty  of  forgery  by  the  Code  Napoleon  (§  139),  which  is  applicable  to 
France,  Belgium,  Greece,  Hayti,  San  Domingo,  the  Canton  of  Geneva  and  Turkey 
(Code  Com.  1850  Art.  96).  It  is  also  forbidden,  and  if  done  with  fraudulent 
purpose,  renders  the  indorser  liable  to  a  penalty  and  for  damages  in  Portu- 
gal (Code  Com.  1833  Art.  359),  and  Russia  (Exch.  Law  1832  Art.  563). 

Griffith  v.  Cox,  1  Overton  210  (1806). 

21  Greenl.  Ev.  g  560;  Smith  v.  Ferrv,  69  Mo.  142  (1878) ;  Baker  v.  Arnold, 
3  Caines  279  (1805). 

3Smith  v.  Nevlin,  89  111.  193  (1S78) ;  Canal  Bank  v.  Templeton,  20  La.  An. 
141  (1868) ;  Collins  v.  Gilbert,  4  Otto  753  (1876) ;  Gray  v.  Brown,  49  Me.  544 
(1861) ;  Meadows  v.  Cozart,  76  N.  C.  450  (1877) ;  Noxon  v.  De  Wolf,  10  Grav 
343  (1858);  Benthall  v.  Judkins,  13  Mete.  265  (1847);  National  PemWertoii 
Bank  v.  Lougee,  108  Mass.  373  (1871) ;  Patterson  v.-Carrell,  60  Ind.  128  (1877)  ; 
White  v.  Weaver,  41  111.  409  (1866) ;  Stewart  v.  Smith,  28  lb.  397  (1862).  And 
in  Arkansas  an  assignee  under  a  blank  assignment  can  assume  the  date 
most  advantageous  to  himself,  Weaver  v.  Caldwell,  9  Ark.  344  (1849). 

41  Parsons  380;  Balch  v.  Onion,  4  Cush.  559  (1849);  Ranger  v.  Cary,  1 
Mete.  369  (1840);  Sullivan  v.  Violett,  6  Gill  181  (1847);  Rahm  v.  Bridg< 
Company,  16  Kans.  530  (1876) ;  Rea  v.  Owens.  37  Iowa  262  (1873) ;  Moblev 
v.  Ryan,  14  111.  51  (1852) ;  Rhode  v.  Alley,  27  Tex.  443  (1864) ;  Smith  v.  Tur- 
ney,  32  lb.  143  (1869). 

5Anderson  v.  Weston,  6  Bing.  N.  C.  296  (1840) ;  Gray  v.  Brown,  49  Me.  544 
(1861) ;  Clendenin  v.  Southerland,  31  Ark.  20  (1876) ;  Trieber  v.  Commercial 
Bank,  lb.  128;  Hutchinson  v.  Moody,  i8  Me.  393  (1841) ;  Baker  v.  Arnold, 
3  Caines  279  (1805) ;  Mobley  v.  Ryan,  14  111.  51  (1852).  But  it  has  been  held 
in  Massachusetts  that  this  presumption  is  not  overcome  by  proof  that  the 
note  was  delivered  to  the  indorsee  before  and  indorsed  after  its  dishonor, 
Ranger  v.  Cary,  1  Mete.  369  (1840). 

"Hearson  v.  Grandine,  87  111.  115  (1877). 

G 


98  FORMAL     REQUISITES. 

tion  is  that  the  transfer  was  made  after  maturity.1  An  in- 
dorsement by  a  third  person  other  than  the  payee  has  the 
same  presumption  in  its  favor,2  which  in  like  manner  is  liable 
to  be  rebutted  by  other  evidence.3 

§  83.  Date  of  Acceptance. — The  acceptance  is  more  usu- 
ally dated  and  should  always  be  so.  But  this  is  imma- 
terial except  where  the  bill  is  made  payable  a  given  time 
after  sight  or  after  acceptance.4  In  such  case  the  running 
of  the  time  of  payment  is  reckoned  from  the  date  of  the 
acceptance  and  not  from  the  time  of  presentment.5  The  date 
of  an  acceptance  is  presumptively  the  time  when  it  was 
made.6  If  there  be  no  express  date,  the  bill  must  be  pre- 
sumed to  have  been  accepted  on  its  date  ;7  or,  at  least,  before 
its  maturity.8  And  evidence  is,  of  course,  admissible  either 
in  support  or  rebuttal  of  the  presumption  to  show  the  actual 
time  of  acceptance.9 

§  84.  Alteration — Misdescription. — An  alteration  of  the 
date,  as  of  any  other  material  part  of  the  instrument,  avoids 
it.10    This  is  true,  although  such  alteration  may  have  no  effect 

'Allison  v.  Hubbell,  17  Ind.  559  (1861).  So,  where  there  was  a  blank  in- 
dorsement but  payee  was  shown  to  be  in  possession  of  the  note  at  its  ma- 
turity, Hutchinson  v.  Moody,  supra. 

2Good  v.  Martin,  5  Otto  90  (1877) ;  Gilpin  v.  Marley,  4  Houst.  281  (1871) ; 
Sullivan  v.  Violett,  6  Gill  181  (1817) ;  Colburn  v.  Averill,  30  Me.  310  (1849) ; 
Lowell  v.  Gage,  38  lb.  35  (1851). 

3 Freeman  v.  Ellison,  37  Mich.  459  (1877). 

*1  Parsons  282.  And  if  a  written  date  appear,  though  in  a  different  hand- 
writing, it  is  presumptively  the  acceptor's  act,  Glossop  v.. Jacob,  4  Campb.  227 
(1815). 

51  Parsons  291;  Mitchell  v.  Degrand,  1  Mason  176  (1817). 

62  Parsons  488;  Glossop  v.  Jacob,  supra. 

7  2  Parsons  488  n. 

n  Parsons  289;  Roberts  v.  Bethell,  12  C.  B.  778  (1852). 

9  2  Parsons  189. 

101  Edwards  §  172;  2  Parsons  550;  Bathe  v.  Taylor,  15  East  412;  Heffner  v. 
Wenrich,  32  Penna.  St.  423  (1859) ;  Stephens  v.  Graham,  7  S.  &  R.  505  (1822) ; 
Hamilton  v.  Wood,  70  Ind.  306  (1880);  Lemay  v.  Williams,  32  Ark.  166 
(18771;  Mitchell  v.  Ringgold,  3  Harr.  &  J.  159  "(1810);  Lewis  v.  Cramer,  3 
Md.  265  (1852) ;  Owings  v.  Arnot,  33  Mo.  406  (1863).  And  this  is  true  even 
in  the  case  of  a  bona  fide  bolder,  and  if  made  after  indorsement,  it  will 
discharge  the  indorser,  Lisle  v.  Rogers,  18  B.  Mon.  528  (1857).  But  an  alter- 
ation by  maker's  agent  under  a  mistaken  view  of  his  authority  before 
delivery  to  a  holder  for  value  will  not  avoid  the  note,  Van  Brunt  v.  E>ff,  35 
Barb.  501  (1861).     In  England  the  alteration  of  the  date  of  an  acceptance 


ALTERATION.  UCJ 

in  changing  the  time  of  maturity.1  More  especially,  where 
the  time  of  maturity  is  thereby  altered,  an  acceptor  will  be 
discharged  by  such  alteration.2  Such  alteration  also  amounts 
to  a  discharge  of  the  surety  upon  such  paper.3  And  even  the 
correction  of  a  mistake  in  the  clay  and  year  of  date  will  dis- 
charge the  surety.4  But  an  alteration  of  such  mistake  before 
delivery  by  the  agent  of  both  drawer  and  acceptor  will  not 
avail  either  of  them  as  ground  of  discharge.5 

In  general  the  date  of  a  bill,  note  or  check  need  not  be 
averred  in  the  pleading.  It  is  sufficient  to  aver  that  A.  B. 
made  his  certain  note  on,  &c.6  And  the  same  is  true  as  to 
the  date  of  an  indorsement.7  And  proof  of  a  note  of  differ- 
ent date  from  that  averred  in  the  pleadings  is  not  a  variance.8 
When,  however,  the  note  is  misdescribed  as  to  date  in  the 
pleadings,  this  should  be  explained.9  And  it  seems  that  mis- 
description of  date  in  an  affidavit  to  hold  to  bail  is  material;10 
but  not  in  au  agreement  or  mortgage  referring  to  the  instru- 
ment, if  its  identity  is  not  thereby  left  in  doubt;11  nor  even 

should  he  pleaded  specially,  unless  it  be  such  an  alteration  as  would  render 
a  new  stamp  necessary,  Parry  v.  Nicholson,  13  M.  &  W.  778. 
'Stephens  v.  Graham,  7  S.  &  R.  505  (1822). 

2  Hirschman  v.  Budd,  L.  R.  8  Ex.  171  (1873) ;  Masters  v.  Miller,  4  T.  R.  320. 

3  Wood  v.  Steele,  6  Wall.  80  (1867) ;  Britton  v.  Diercker,  46  Mo.  591  (1870). 
Not  so,  however,  an  alteration  made  before  delivery  and  authorized  by  the 
surety,  Prather  v.  Zulauf,  38  Ind.  155  (1871). 

4 Miller  v.  Gilleland,  19  Penna.  St.  119  (1852). 

5BruU  v.  Picard,  Ry.  &  Mood.  37  (1824).  So,  too,  where  the  alteration  was 
supposed  by  the  agent  to  be  within  his  authority,  but  was  not  a  mere  cor- 
rection of  mistake,  Van  Brunt  v.  Eoff,  35  Barb.  501  (1861). 

6  Robinson  v.  Grandy,  50  Vt,  122  (1877).  But  where  the  averment  was  that 
a  note,  which  had  no  date  and  was  payable  "nine  months  after  date,"  was 
made  at  a  time  less  than  nine  months  before  commencement  of  suit,  it  was 
fatal,  Seldonridge  v.  Connable,  32  Ind.  375  (1869). 

'Caldwell  v.  Lawrence,  84  111.  161  (1876). 

HByles  80;  1  Daniel  94;  2  Parsons  474;  Coxon  v.  Lyon,  2  Campb.  307?).: 
Smith  v.  Lord,  2  Dowl.  &  L.  759.  But  it  is  said  by  Mr.  Byles  (supra)  that  this 
"would  he  otherwise  if  the  declaration  went  on  to  describe  the  instrument 
as  hearing  date  on  a  particular  day." 

91  Daniel  94;  2  Parsons  474.  And  in  Tobler  v.  Stubblefield,  32  Tex.  188 
(1869),  such  misdescription  of  date  was  held  to  be  sufficient  ground  for 
setting  aside  a  judgment  by  default. 

10Chitty  615;  Jadis  v.  Williams,  5  L.  J.  K.  B.  136. 

11  Byles  80:  Way  v.  Hearne,  32  L.  J.  34;  Dean  v.  De  Lezardi,  24  Miss.  424 
(1852).  So,  even  a  mistake  of  the  time  of  maturity  in  an  acceptance,  the 
:bill  being  dated  September  8th,  1856.  and  payable  four  months  after  date, 


100  FORMAL     REQUISITES. 

in  a  notice  of  dishonor,  if  such  misdescription  causes  no  un- 
certainty.1 

§  85.  Limitation  Affected  by  Date. — Where  a  bill  or  note 
is  payable  on  demand,  the  statute  of  limitations  runs  from 
the  date  of  the  instrument  and  not  from  demand  of  pay- 
ment.2 When,  however,  the  instrument  is  ante-dated,  it 
takes  effect,  as  we  have  seen,  from  its  delivery  only,  and  the 
statute  of  limitations  runs  from  that  time  and  not  from  its 
date.3  But  where  a  note  is  made  payable  six  months  after 
date  and  post-dated  in  1841,  although  actually  made  and  de^ 
livered  in  1840,  the  time  of  maturity,  as  we  have  already  seen, 
is  reckoned  by  relation  to  the  date  expressed  (1841),  and 
the  statute  of  limitations  began  to  run  from  such  maturity.4 

but  accepted  "  due  December  11th,  1856,"  instead  of  January,  1857,  Fanshawe 
v.  Peet,  2H.&N.1  (1857). 

n  Parsons  476;  Mills  v.  Bank  of  U.  S.,  11  Wheat.  431  (1826)  ;  Ross  v. 
Planters'  Bank,  5  Humph.  335  (1844) ;  Saltmarsh  v.  Tuthill,  13  Ala.  390 
(1848).  So,  a  notice  of  protest  dated  by  mistake  on  a  day  later,  but  actually 
served  on  the  day  of  the  note's  maturity,  cannot  mislead,  and  although  it 
amounts  to  a  misdescription  of  the  note,  is  immaterial,  Tobey  v.  Lennig,  14 
Penna.  St.  483  (1850). 

21  Parsons  38,  375;  2  76.  643;  Newman  v.  Kettelle,  13  Pick.  418  (1832) ; 
Caldwell  v.  Rodman,  5  Jones  139  (1857);  Kingsbury  v.  Butler,  4  Vt.  458 
(1832) ;  Larason  v.  Lambert,  7  Halst.  247  (1831) ;  Ruff  v.  Bull,  7  Harr.  &  J. 
14  (1825);  Easton  v.  McAllister,  1  Mo.  662  (1826);  Wilks  v.  Robinson,  3 
Rich.  182  (1832) ;  Woodward  v.  Drennan,  3  Brev.  189  (1815).  But  bank 
notes  are  an  exception  to  this  rule,  Greer  v.  Perkins,  5  Humph.  588  (1845)  : 
Farmers'  and  Mechanics'  Bank  v.  White,  2  Sneed  482  (Tenn.  1858);  Wright 
v.  Douglass,  3  Barb.  554  (1848). 

'Raefie  v.  Moore,  58  Ga.  94  (1877).  In  this  case  the  note  was  made  pay- 
able one  day  after  date  and  dated  July  1st,  but  actually  made  and  delivered! 
in  August. 

*Bumpass  v.  Timms,  3  Sneed  459  (1856). 


LANGUAGE  OF  CONTRACT.  101 


CHAPTER  IV. 

FORM— THE  CONTRACT  FOR  PAYMENT. 

I.  Its  Positive  Character.  < 

II.  Its  Unconditional  Character.  j 

III.  Its  Limited  Character.  & 

IV.  Its  Certainty. 

A.  Certainly  as  to  Amount. 

B.  Certainty  as  to  Time  of  Payment. 

C.  Certainty  as  to  Place  of  Payment. 


I.    ITS   POSITIVE   CHARACTER. 

86.  Language  of  Contract. 

87.  Necessary  Promise  or  Order. 

88.  Acknowledgments — Due-bills. 

89.  Certificates  of  Deposit  or  Receipt. 

90.  What  Words  Imply  a  Promise. 

91.  Municipal  Warrants — Coupons. 

§  86.  Language  of  Contract. — No  forms  of  contract  are 
better  known,  nor  in  general  simpler  or  briefer,  than  the 
ordinary  form  of  promissory  note,  bill  of  exchange  or  draft, 
and  check.  No  particular  form  of  words  is  necessary  to  con- 
stitute such  instrument.1  Thus,  a  note  may  be  in  the  form 
commonly  used  for  a  bond;2  or,  under  some  circumstances, 
for  a  bill  of  exchange.3  So,  an  order  for  payment  indorsed 
on  a  bond  or  note  or  on  a  statement  of  account  has  been  held 
to  be  equivalent  to  a;- bill  of  exchange.4 

'Byles  78;  Chitty  148;  1  Daniel  82;  1  Edwards  g  134;  1  Parsons  23  ;  Story 
on  Bills  \  33;  Storv  on  Prom.  Notes  \  12;  Morris  v.  Lea,  Ld.  Raym.  1396; 
S.  C,  1  Stra.  629 ;  Brooks  v.  Elkins,  2  M.  &  W.  74 ;  Peto  v.  Reynolds,  9  Exch 
410:  S.  C,  11  lb.  418;  Hitchcock  v.  Cloutier,  7  Vt.  22  (1835);  Partridge  v. 
Davis,  2()  Vt.  499  (1848) ;  Smith  v.  Bridges,  1  111.  18  (1819).  And  this  is  ex- 
pressly provided  in  the  Civil  Code  of  Lower  Canada  1867  I  2344. 

s  Woodward  v.  Genet,  2  Hilt.  526  (1858) ;  Bank  of  Louisiana  v.  Williams, 
21  La.  An.  121  (1869) ;  Hitchcock  v.  Cloutier,  7  Vt.  22  (1835). 

3  Byles  93 ;  Chitty  151 ;  Edis  v.  Burv,  6  B.  &  C.  433 ;  9  D.  &  R.  492 ;  Edwards 
v.  Dick,  4  B.  &  Aid.  212;  Lloyd  v.  Oliver,  18  Q.  B.  471 ;  Allen  v.  Mawson,  4 
Campb.  115. 

41  Daniel  82;  Leonard  v.  Mason,  1  Wend.  522  (1828) ;  but  not  a  negotiable 
bill,  Hoyt  v.  Lynch,  2  Sandf.  328  (1849).  But  in  Platzer  v.  Norris,  38. Tex. 
1  (1873),  such  instrument  was  held  not  to  be  a  bill  of  exchange  for  want  of 


102  FORM THE    CONTRACT    FOR    PAYMENT. 

Irrespective,  however,  of  words  relating  to  the  considera- 
tion, place  of  payment  and  transferability  (to  be  considered 
elsewhere),  certain  phrases  have  been  at  times  required  by 
statute  to  make  a  note  negotiable  in  the  fullest  commercial 
sense.  Such  a  requirement  is  that  which  limited  negotiability 
to  notes  containing  the  words  "without  defalcation  or  dis- 
count."1 So,  the  statute  requiring  notes  given  for  a  patent  to 
express  that  fact  on  their  face  by  the  words  "given  for  a  patent 
right"2  And  in  some  foreign  states  bills  of  exchange  must 
be  designated  as  such  in  plain  words  ;3  while  in  Germany  the 

the  name  of  a.  payee.  An  order  of  this  sort  is  not  the  less  a  bill  of  exchange 
because  referring  to,  instead  of  indorsed  on,  a  note,  e.  g.  an  order  to  pay  C. 
or  bearer  $400  ''  and  take  up  A.'s  note  for  that  amount,"  Cook  v.  Satterlee, 
6  Cow.  108  (1826).  But  an  order  for  payment  of  demurrage  indorsed  on  a 
bill  of  lading  will  not  render  it  negotiable,  Falkenburg  v.  Clark,  11  R.  I.  278 
(1876). 

1In  Missouri  the  words  "negotiable  and  payable  without  defalcation  or 
discount,"  were  formerly  necessary  to  a  negotiable  note  (1835  R.  C.  298  §7). 
But  they  are  no  longer  required  (1865  G.  S.  c.  86  g  15 ;  1879  R.  S.  c.  10  I  547). 
See  as  to  former  requirement,  Macy  v.  Kendall,  33  Mo.  164  (1862). 

So,  in  New  Jersey  the  words  "without  defalcation  or  discount"  were 
formerly  necessary  to  make  a  promissory  note  negotiable  independent  of 
equities  (1795  Pat.  Rev.  p.  342  \  4).     This  was  repealed  in  1871  (P.  L  p.  13). 

In  Arkansas  like  force  was  given  to  the  words  "  without  defalcation  "  until 
1873  (Gould's  Dig.  c.  15  \  3).  See,  too,  Woodruff  v.  Webb,  32  Ark.  612 
(1877). 

In  Pennsylvania  promissory  notes  "bearing  date  in  the  city  and  county 
of  Philadelphia  "  and  containing  the  words  "  without  defalcation  "  or  "  with- 
out set-off"  may  be  "held  by  the  indorsees  discharged  from  any  claim  of 
defalcation  or  setoff"  (Act  of  1797;  1872  Purd.  Dig.  p.  1173  I  1). 

sIn  Michigan  the  words  "given  for  a  patent  right"  must  be  added  on  the 
face  of  notes  given  in  purchase  of  patent  rights  and  such  addition  subjects 
the  note  to  defenses  as  though  in  the  hands  of  the  original  payee  (1  Comp. 
L.  1871  p.  519 ;  1871  P.  L.  p.  191).  So,  in  New  York  (1877  P.  L.  p.  68).  So, 
in  Ohio  (1880  R.  S.  I  3178;  1869  P.  L  p.  93  I  1).  This  act  has  been  held  not 
to  apply  to  a  non-negotiable  note,  State  v.  Brower,  30  Ohio  St.  101  (1876) ; 
or  to  a  note  given  for  a  patented  machine,  State  v.  Peck,  25  lb.  26  (1S74). 
So,  in  Pennsylvania  (1872  P.  L.  p.  60  \\  1,  2;  Purd  Dig.  p.  1173  I  3).  Indiana, 
Nebraska  and  Vermont  have  similar  acts.  The  Indiana  statute  has  been  held 
unconstitutional,  Helm  v.  First  Nat.  Bank,  43  Ind.  167  (1873).  But  the 
contrary  has  been  held  in  Pennsylvania,  Haskell  v.  Jones,  86  Penna.  St.  173 
(1878) ;  and  in  Ohio,  Tod  v  Wick,  36  Ohio  St  370  (1881).  The  omission  of 
these  words  will  not,  however,  affect  the  validity  of  the  note  in  the  hands 
of  a  bona  fide  holder,  Hunter  v.  Henninger,  93  Penna.  St.  373  (1880) ;  Has- 
kell v.  Jones,  86  Penna.  St.  173  (1878) ;  Hereth  v.  Meyer,  33  Ind.  511  (1870) ; 
Moses  v.  Comstock,  4  Neb.  516  (1876) ;  Pindar  v.  Kelley,  48  Vt.  27  (1875) ; 
Streit  v.  Waugh,  lb.  298  (1876).  And  the  words  "given  for  a  patent  right" 
do  not  destrov  the  presumption  of  good  faith  in  the  purchaser,  Goddard 
v.  Lyman,  14  Pick.  268  (1833) ;  Hereth  v.  Merchants'  Nat.  Bank,  34  Ind.  380 
(1870). 

3This  is  the  case  as  to  drafts  in  Bolivia  (Com.  Code  1834  Art.  463) ;  Spain 
(Com*  Code  1829  Art.  563) ;  Peru  (Cod.  Com.  1853  Art.  522) ;  Colombia  (Com, 


NECESSARY    PROMISE    OR    ORDER.  103 

•word  "  Wechsel"  (exchange)  or  its  equivalent  in  a  foreign  lan- 
guage is  indispensable  to  both  bill  and  notes.1  In  Hungary, 
moreover,  there  is  a  curious  provision  as  to  form,  which  makes 
everything  "in  Hebrew  letters"  invalid  in  such  instruments.2 
§  87.  Necessary  Promise  or  Order. — Whatever  may  be  the 
language  or  form  of  words  used,  a  contract  for  the  payment  of 
money  is  essential  to  the  character  of  commercial  paper.  In 
a  note  this  contract  takes  the  form  of  a  promise  to  pay.  In 
a  bill  or  draft  it  takes  the  form  of  a  request  or  order  to  pay.3 
But  the  word  "  pay  "  is  not  indispensable.  Thus  a  promise 
"  to  pay  or  cause  to  be  paid  "  has  been  held  to  be  a  sufficient 
promissory  note  ;4  so,  "  to  account,"  "to  be  accountable  for  ;"5 
so,  without  further  words  of  promise,  "  good  to  A.  B.  or  order 
for  $30  ;"6  or,  "good  to  bearer"  written  under  an  account 
in  which  the  amount  was  stated  ;7  so,  "  I  guaranty  to  pay."* 

Code  1853  Art,  517);  Costa  Rica  (Com.  Code  1853  Art,  510);  and  Ecuador 
(same  as  Spain)  ;  as  to  bills  and  notes  in  Russia  (Law  of  1832  Art.  541) ;  and 
Salvador  (Com.  Code  1855  Art.  510) ;  as  to  bills  of  exchange  only  in  Sweden 
and  Norway  (Exch.  Law  1851  c.  1  g  1)  ;  and  Switzerland  (Zurich  1805  \  1; 
Berne  1859  g  3;  Basle  1863  \  3). 

•Thai  W.  R.  146;  Germ.  Exch.  Law  1848  Arts.  4,  96.  This  requirement 
was  adopted  also  in  Austria  (Exch.  L.  1850  Arts.  4,  96),  and  in  Hungary 
(Exch.  Law  1860  c.  1  |  14). 

'Hungarian  Exch.  Law  1860  c.  1  \  14;  Law  of  1844  g  2. 

3Byles  82;  1  Daniel  40;  1  Parsons  42;  Story  on  Prom.  Notes  \  19  n.  3. 
But  where  by  mistake  or  fraud  the  instrument  read,  "Borrowed  of  I.  S. 
£50  which  I  promise  never  to  pay,"  recovery  was  had  as  on  a  proper  prom- 
ise, Anon.,  2  Atk.  32;  Chitty  151. 

♦Lovell  v.  Hill,  6  C.  &  P.  238  (1S33) ;  or  simply  an  acknowledgment  of 
debt  "  to  be  paid,"  Casborne  v.  Dutton,  Sel.  N.  P.  381.  So,  too,  without  any 
word  of  promise  the  following  instrument  has  been  held  to  be  a  promissory 
note:  "For  value  received  of  A.  B.  or  order  $30  on  demand  and  interest 
annually,"  Cu minings  v.  Gassett,  19  Vt.  308  (1847). 

6 Morris  v.  Lea,  Ld.  Raym.  1396;  S.  C,  1  Stra.  629;  see,  too,  Furber  v.  Cav- 
erly,  42  N.  H.  74  (1860),  where  an  indorsement  of  "A.  B.  accountable  "  was 
held  to  lie  a  sufficient  contract  of  guaranty.  So,  Bagley  v.  Buzzell,  19  Me. 
88  (1841).  But,  contra,  under  stamp  act,  a  mere  receipt  for  £20,  "which  I 
borrowed  of  you  and  I  have  to  be  accountable  for  the  said  sum,"  Home  v. 
Redfearn,  4  Bing.  N.  C.  433  (1838). 

"Franklin  v.  March,  6  N.  H.  364  (1833).  And  see  Weston  v.  Myers,  33  111. 
424  (1864),  where  no  payee  was  named,  but  the  holder  was  allowed  to  add 
his  own  name  as  payee.  But  the  contrary  was  held,  for  want  of  a  payee, 
in  Brown  v.  Gilman,  13  Mass.  158  (1816). 

'Hussey  v.  Winslow,  59  Me.  170  (1870). 

"Ketchell  v.  Burns,  24  Wend.  456  (1840);  Lequeer  v.  Prosser,  1  Hill  256 
1 1841) ;  Bruce  v.  Westcott,  3  Barb.  374  (1848) ;  Partridge  v.  Davis.  20  Vt.  499 
(1848).  Nut  so,  however,  a  guaranty  of  another  note  written  on  a  separate 
\  viper,  Weed  v.  Clark,  4  Sandf.  31  ;i850). 


104  FORM THE    CONTRACT    FOR    PAYMENT. 

And  even  the  words  "  I  have  borrowed  "  have  been  held  to 
imply  a  promise  of  payment;1  or  the  indorsement  "holden."'2 
In  like  manner  an  order  to  "  let  the  bearer  have  $50  "  con- 
stitutes a  valid  bill  of  exchange.3    So,  too,  an  order  to  "credit 

A.  in  cash."4  And  all  mistakes  of  expression  are  immaterial, 
which  merely  substitute  a  past  for  a  present  tense,  e.  g.  "  I 
promist  ;"5  or  use  the  pronoun  "  I "  for  several  joint  makers  ;6 
or  the  pronoun  "  we  "  for  a  sole  maker.7  So,  too,  "  we  or 
either  of  us  promise  "  has  been  held  to  constitute  a  good  joint 
and  several  note.8 

The  expressions  "please,"  "and  oblige,"  &c,  do  not  detract 

1  Harrow  v.  Dugan,  6  Dana  341  (1838) ;  Woodfolk  v.  Leslie,  2  Nott  &  McC. 
585.  So,  too,  the  following  has  been  held  to  be  a  good  note:  "A.  B.  bor- 
rowed of  C.  D.  £14  as  per  loan  in  promise  of  payment  of  which  I  am  truly 
thankful  for  and  shall  never  be  forgotten  by  me,  J.  M.  your  affectionate 
brother,  £14,"  Ellis  v.  Mason,  1  Eng.  Jur.  380,  cited  2  Hill  295  n.  But  see, 
Home  v.  Redfearn,  4  Bing.  N.  C.  433.     And  in  Hyne  v.  Dewdney,  21  L.  J.  Q. 

B.  278  (1852),  Lord  Campbell,  C.  J.,  said  of  a  paper  in  these  words,  "Bor- 
rowed of  A.  B.  £100  for  one  or  two  months,"  that  there  was  "no  binding 
contract  *  *  *  nothing  more  than  a  simple  acknowledgment  of  the 
money  having  been  paid." 

2  Bean  v.  Arnold,  16  Me.  251  (1839). 

3Biesenthal  v.  Williams,  1  Duv.  329  (1864).  But  see,  contra,  Little  v. 
Slackford,  1  Mood.  &  M.  171  (1828). 

*  Ellison  v.  Collingridge,  9  C.  B.  570  (1850) ;  Allen  v.  Sea,  F.  &  L.  Ass  Co., 
lb.  574.  But  an  order  to  "  credit  A.  or  bearer  $30,  and  I  will  pay  you,"  is 
not  a  sufficient  bill  of  exchange,  Woolley  v.  Sergeant,  3  Halst.  262  (1826). 

'Bland  v.  People,  4  111.  364  (1842) ;  and  "  I  promised,"  &c,  has  been 
held  to  be  a  sufficient  negotiable  note  to  support  an  indictment  for  the 
forgery  of  a  note,  Perkins'  Case,  7  Gratt.  651  (1851). 

6Lequeer  v.  Prosser,  1  Hill  N.  Y.  256;  Hemmenway  v.  Stone,  7  Mass.  58; 
Wallace  v.  Jewell,  21  Ohio  St.  163  (1871);  Ely  v.  Clute,  19  Hun  35  (1879) ; 
Hoi  man  v.  Gilliam,  6  Rand.  39  (1827) ;  Maiden  v.  Webster.  30  Ind.  317  (1868) ; 
Harrow  v.  Dugan,  6  Dana  341  (1838) ;  Ladd  v.  Baker,  26  N.  H.  76  (1852) ; 
Humphreys  v.  Guillow,  13  N.  H.  387 ;  Eddv  v.  Bond,  19  Me.  461  (1841) ;  Bar- 
net  v.  Skinner,  2  Bailey  88  (1831) ;  Hopkins  v.  Lane,  4  T.  &  C.  311  (1874)  ; 
Lane  v.  Salter,  4  Roberts.  239  (N.  Y.  1866) ;  Higerty  v.  Higerty,  1  Phila.  282 
(1851);  Kinsely  v.  Shenberger,  7  Watts  193;  Karck  v.  Avinger,  3  Hill  215 
(So.  Car.  1837) ;  Monget  v.  Penny,  7  La.  An.  134  (1852) ;  Groves  v.  Stephen- 
son, 5  Blackf.  584  (1841) ;  Monson  v.  Drakeley,  40  Conn.  552  (1878) ;  Dederick 
v.  Barber,  44  Mich.  19  (1880);  Dill  v.  White,  52  Wis.  456  (1881).  It  has, 
however,  been  held  not  to  be  prima  facie  a  joint  note,  where  one  signed  at 
the  right  hand  with  a  seal  and  the  other  to  the  left  with  the  word  "  witness  " 
printed  above  his  name,  Steininger  v.  Hoch,  39  Penna.  St.  263  (1861) ;  Hop- 
kins v.  Lane,  4  T.  &  C.  311  (1874).  But  see,  contra,  Keller's  Admr.  v.  McHuff- 
man,  15  W.  Va.  64  (1879),  which  only  differed  from  Steininger  v.  Hoch, 
supra,  in  using  the  word  "  security  "  instead  of  "  witness." 

7  Whitmore  v.  Nickerson,  125  Mass.  496  (1878) ;  Rice  v.  Gove,  22  Pick.  158  ; 
Holmes  v.  Sinclair,  19  111.  71  (1857) ;  Dickerson  v.  Burke,  25  Ga.  225  (1858). 

"Pogue  v.  Clark,  25  111.  333  (1861). 


ACKNOWLEDGMENTS.  105 

from  the  commercial  character  of  an  instrument.  Thus, 
Lord  Kenyon  held  an  instrument  to  be  a  bill  of  exchange, 
which  read :  "  Mr.  N.  will  much  oblige  Mr.  W.  by  paying," 
&C.1  But  a  mere  request  to  do  a  favor  to  the  drawer  is  not 
a  bill  of  exchange,  e.  g.  "please  let  the  bearer  have  £7  and 
place  k  to  my  account  and  you  will  much  oblige  your  hum- 
ble servant;"2  or,  "please  take  up  my  note  payable  to  S.  for 
$200  and  it  will  be  all  right  as  we  talked  ;"3  or,  "please  pay 
my  wages  as  fast  as  they  become  due  to  the  amount  of  $150."* 
So,  "I  allow  to  give"  has  been  held  to  express  a  mere  inten- 
tion and  no  sufficient  promise.5 

§  88.  Acknowledgments — Due-bills. — A  mere  acknowledg- 
ment of  indebtedness  is  not,  in  general,  sufficient  to  consti- 
tute either  a  bill  or  note;6  although  such  acknowledgment 
has  been  held  a  sufficient  promise  to  take  a  case  out  of  the 
statute  of  limitations  in  Georgia.7  And  in  Alabama  an  ac- 
knowledgment of  a  sum  due  setting  out  the  consideration  for 
which  it  was  given  has  been  held  to  be  a  promissory  note.8 
And  some  of  the  United  States  have  by  statute  extended  the 
•character  and  law  of  promissory  notes  to  all  instruments  in 
writing  "whereby  any  person  acknowledges  any  sum  of 
money  to  be  due  to  any  other  person."9 

'Ruff  v.  Webb,  1  Esp.  129  (1794).  See,  too,  Russell  v.  Powell,  14  M.  &  W. 
418.  And  see,  Biesenthal  v.  Williams,  1  Duv.  329  (1864).  But  "  we  authorize 
you  to  pay  A.  B.  or  order"  is  not  sufficient  to  make  a  bill  of  exchange, 
Hamilton  v.  Spottiswoode,  4  Exch.  200  (1849). 

'Little  v.  Slackford,  1  Mood.  &  M.  171  (1828). 

8Gillilan  v.  Myers,  31  111.  525  (1863). 

♦Knowlton  v.  Cooley,  102  Mass.  233  (1869). 

5 Harmon  v.  James,  7  Ind.  263  (1855). 

6Byles  28;  Chittv  150;  1  Daniel  42;  1  Parsons  25;  Story  on  Prom.  Notes 
?  14;  Sears  v.  Trustees  Wesl.  Univ.,  23  111.  183  (1862) ;  New  Orleans  v.  Straus, 
25  La.  An.  50  (1875) ;  Carson  v.  Lucas,  13  B.  Mon.  213  (1852).  And  this  is 
clearly  the  case  where  a  memorandum  ("I  owe  the  estate  of  A.  B.  $150") 
was  given  merely  as  a  statement  without  intention  of  making  a  note  of  it, 
Bowles  v.  Lambert,  54  111.  237  (1S70). 

'Brewer  v.  Brewer,  6  Ga.  588  (1849). 

8 Fleming  v.  Burge,  6  Ala.  373  (1844).  See,  too,  Blood  v.  Northrup,  1  Kans. 
28;  Finney  v.  Shirley,  7  Mo.  42. 

9This  statute  appears  to  have  originated  in  Illinois  (1845  R.  S.  384;  1880 
R.  S.,  Hurd'a  Ed.,  c.  98  U  3-7).  It  has  been  enacted  also  in  Colorado  (1877 
G.  L  110  ?  90) ;  Idaho  (1875  R.  L.  648  $  1-4) ;  Indiana  (1  R.  S.,  Davis'  Ed., 
1876  c.  177  %\  1-1 ;  also  vol.  2  p.  35  \  6) ;  Iowa  (1880  Rev.  Code  g  2085) ;  and 


106  FORM THE    CONTRACT    FOR    PAYMENT. 

But  in  the  absence  of  special  statutes  and  of  words  indi- 
cating a  promise  of  payment,  a  mere  due-bill  or  I.  O.  U.  is 
not  regarded  as  a  promissory  note  in  England.1  And  this 
is  also  the  rule  in  some  of  the  United  States  at  least.2  In 
other  States  a  due-bill,  acknowledging  a  sum  of  money  to 
be  due  A.  B.  "or  bearer,"  has  been  held  to  be  a  sufficient 
promissory  note;3  especially  where  the  sum  due  is  referred 
to  as  "borrowed,"  "amount  of  bill  rendered,"  &c.4 

§  89.  Certificates  of  Deposit  or  Receipt. — In  like  manner 
a  banker's  certificate  of  deposit,  although  not  expressly  pro- 
viding for  payment  on  return  of  the  certificate,  has  been  held 
to  imply  such  promise  and  to  be  equivalent,  therefore,  to  a 
promissory  note;5  even  within  the  meaning  of  the  banking 

Mississippi  (1871  Rev.  Code  I  2227;  1880  Rev.  Code  \  1123).  But  in  Illinois 
the  following  is  not  a  negotiable  note — "Cartage  Ticket,  50  cents,  Hubbard, 
Spencer  &  Co.,"  Hubbard  v.  Holloway,  13  Bradw.  101  (18S3). 

'Bvles  29;  Chitty  150;  Fesenmayer  v.  Adcock,  16  M.  &  W.  449  (1847)  ; 
Melanotte  v.  Teasdale,  13  lb.  216  (1844);  Smith  v.  Smith,  1  F.  &  F.  539; 
Gould  v  Combs,  1  C.  B.  543;  Fisher  v.  Leslie.  1  Esp.  425  (1795)  ;  Israel  v. 
Israel,  1  Campb.  499  (1808);  Childers  v.  Boulnois,  Dow.  &  Ry.  15  p.  8; 
Beeching  v.  Westbrook,  8  M.  &  W.  412. 

2 Carson  v.  Lucas,  13  B.  Mon.  213  (1852) ;  Garland  v.  Scott,  15  La.  An.  143 
(1860) ;  Currier  v.  Lockwood,  40  Conn.  349  (1873) ;  Read  v.  Wheeler,  2  Yerg. 
50.  (This  decision,  made  in  1821,  was  overruled  in  1840  in  Cummings  v. 
Freeman,  2  Humph.  143).  See,  too,  Brenzer  v.  Wightman,  7  Watts  &  S. 
264  (1S44).  Especially  if  the  due-bill  does  not  name  a  payee  or  time  of 
payment,  Biskup  v.  Oberle.jp  Mo.  App.  583  (1878). 

3Sackett  v.  Spencer,  29  Barb.  180  (1859);  Russell  v.  Whipple,  2  Cow.  536 
(1824);  Huyck  v.  Heador,  24  Ark.  191  (1866);  Wardwell  v.  Sterne,  22  La. 
An.  28  (1870).  Where,  however,  a  due-bill  was  made  due  to  "Bearer"  but 
addressed  to  A.  B.,  it  was  held  to  be  a  question  for  the  jury  to  determine 
whether  it  was  intended  for  a  note  or  a  mere  memorandum,  Hopson  v. 
Binnwankel,  24  Tex.  607  (1860). 

4Cummings  v.  Freeman,  2  Humph.  143  (1840);  Finnev  v.  Shirley,  7  M<>. 
42  (1841);  McGowen  v.  West.  lb.  569  (1842)  ;  Brady  v.  Chandler,  31  lb  28 
(1S60);  Bacon  v.  Bicknell.  17  Wis.  523  (1863);  Jacquin  v.  Warren.  40  III. 
459  (1866) ;  Spearing  v.  Zacharie.  26  La.  An.  496  (1874) ;  McDonalu  v.  Yeager, 
42  Ind.  388. 

5 1  Edwards  \  486  ;  1  Parsons  26 ;  Richer  v.  Voyer,  L.  R.  5  P.  C.  461  (1S74) ; 
Miller  v.  Austen,  13  How.  21S,  affirming  Austen  v  Miller,  5  McLean  15:5; 
Bank  of  Orleans  v.  Merrill,  2  Hill  295;  Leavitt  v.  Palmer,  3  N.  Y.  35;  Par- 
dee v.  Fish,  60  N.  Y.  265  (1875);  Hart  v.  Life  Assoc,  54  Ala.  495  (1875);. 
Hunt  v.  Divine,  37  111.  137  (1865);  Fells  Point  Savings  Inst.  v.  Weedon, 
18  Md.  320  (1862);  Cate  v.  Patterson,  25  Mich.  191  (1872);  Brummagim  v. 
Tallant,  29  Cal  503(1866);  Tripp  v.  Curtenius,  36  Mich.  494  (1877);  Bank 
of  Peru  v.  Famsworth,  18  111.  563:  Hazleton  v.  Union  Bank,  32  Wis.  51 
(1873);  Lauehlin  v.  Marshall.  19  III.  390;  Gregg  v.  Union  Co.  Bank,  87  Ind. 
238  (1882);  Howe  v.  Hartness;  11  Ohio  St.  449--  Johnson  «  Barney,  1  Iowa 
531  ;  Bean  v.  Brings,  76.488;  Fultz  v.  Walters.  2  Mont.  165  (1874)';  Kilgore 
v.  Bulkley,  14  Conn.  362;  Poorman  v. 'Mills.  35  Cal.  118;   Mills  v.  Barnev,  22 


WHAT    WORDS    IMPLY    A    PROMISE.  107 

act.1  A  mere  bank  deposit  book,  however,  is  not  negotiable  ;2 
nor  a  slock  certificate?  On  the  other  hand,  a  certificate  of 
purchase  of  certain  property  for  $400,  "which  amount  I 
hereby  acknowledge  to  be  unpaid  and  yet  due,"  has  been 
held  in  Georgia  to  be  a  good  promissory  note.4  So,  too,  a 
warehouseman's  receipt  made  payable  to  bearer  is  negoti- 
able.5 

§  90.  What  Words  Imply  a  Promise. — In  general  any  ex- 
pression of  a  promise  to  pay  will  make  a  promissory  note  of 
what  would  otherwise  be  in  form  merely  an  acknowledgment 
of  debt.  Thus,  an  acknowledgment  of  debt  "payable"  to 
A.  B.  is  a  note.6  So,  an  acknowledgment  of  debt  to  A.  B., 
"to  be  paid  on  demand;"7  or  of  a  balance  due  which  "I  am 

lb.  240;  Welton  v.  Adams,  4  76.  37;  McMillan  v.  Richards.  9  lb.  418.  In 
California  (1872  Civ.  Code  \  8095)  and  in  Dakota  (1877  Rev.  Code  \  1S29)  cer- 
tificates of  deposit  are  classified  by  statute  as  negotiable  instruments;  and 
soin  Wisconsin  (1878  R.  S.  \\  1675,  1676)  certificates  of  deposit  "whereby 
any  one  shall  promise  to  pay,"  &c.  But  a  different  rule  has  been  adopted 
in  Pennsylvania ;  London  Savings  Fund  Soc.  v.  Hagerstown  Sav.  Bank,  36 
Penna.  St.  498  (1860) ;  Patterson  v.  Poindexter,  6  Watts  &  S.  227  (1843); 
Charnley  v.  Dulles,  8  lb.  361  (1845).  So,  Lebanon  Bank  v.  Mangan,  2S 
Penna.  St.  452  (1857),  following  Patterson  v.  Poindexter,  above  cited,  and 
holding  the  adverse  decision  of  Miller  v.  Austen,  13  How.  218,  only  authori- 
tative in  Pennsylvania  as  an  expression  of  the  law  of  Ohio. 

lLeavitt  v.  Palmer,  3  N.  Y.  35  (1849) ;  Bank  of  Peru  v.  Farnsworth,  IS  111. 
563;  Hazleton  v.  Union  Bank,  32  Wis.  51  (1873).  But  it  is  not  such  a  note 
as  must  by  statute  of  New  York  be  signed  by  both  president  and  cashier  of 
the  bank  making  it,  Leavitt  v.  Palmer,  3  N.  Y.  35;  Barnes  v.  Ontario  Bank, 
19  N.  Y.  159.  See,  too,  Carey  v.  McDougald,  7  Ga.  85  (Ga.  Stat,  1837, 
Hotchk.  358). 

5  Witte  v.  Vincenot,  43  Cal.  325  (1S72) ;  Howard  v.  Windham  Co.  Sav.  Bank, 
40  Vt.  597  (1868). 

'Mechanics'  Bank  v.  N.  Y.  &  N.  H.  R.  R.,  13  N.  Y.  599.  But  a  scrip  cer- 
tificate for  the  delivery  of  shares  of  stock  to  bearer  has  been  held  in  Eng- 
land to  be  negotiable  by  the  usage  of  bankers,  and  therefore  to  be  valid  in 
the  hands  of  an  innocent  purchaser,  although  negotiated  by  a  broker  in 
fraud  of  his  principal,  the  rightful  owner,  Rum  ball  v.  Metropolitan  Bank,  L. 
R.  2Q.  B.  D.  194  (1877). 

4 Lowe  v.  Murphy,  9  Ga.  338  (1851). 

5In  Minnesota  without  indorsement,  State  v.  Loomis,  27  Minn.  521  (1881); 
(1.  S.  Minn.  1878  c.  124  £  17.  In  Missouri,  however,  only  by  indorsement, 
Erie,  &c,  Dispatch  v.  St.  Louis  Cotton  Co..  6  Mo.  App.  172  (1878).  The  Mis- 
souri statute  (Wagn.  220  0.  6,  7)  makes  such  receipts  "negotiable  by  writ- 
ten indorsement  and  delivery  in  the  same  manner  as  bills  of  exchange  and 
promissory  notes."  And  if  not  transferred  by  indorsement,  they  are  not 
negotiable",  Fourth  Nat,  Bank  v.  St.  Louis  Cotton  Exp.,  11  Mo. "App.  333 
i  1882).  But.  they  are  not  covered  by  the  statute  relating  to  negotiable  in- 
strument in  Illinois,  Canadian  Bank  v.  McCrea,  106  111.  281  (1882). 

sl  Parsons  25. 

'Casborne  v.  Dutton,  Selwyn  N.  P.  401. 


103  FORM THE    CONTRACT    FOR    PAYMENT. 

still  indebted  and  do  promise  to  pay."1  In  like  manner  a 
due-bill  "payable"  or  "to  be  paid"  on  demand  or  in  any 
other  specified  manner  is  to  all  intents  and  purposes  a  prom- 
issory note  ;2  or  "to  be  paid  when  called  for  ;"3  or  even  pay- 
able to  another  person  than  the  one  to  whom  the  money  is 
said  to  be  due,  in  which  case  it  has  been  held  to  be  a  good 
note  to  such  other  person.4  And  even  in  England  an  "I.  O. 
U.  £20  to  be  paid  on  "  &c,  has  been  held  to  be  a  sufficient 
promissory  note.5  And  in  the  United  States  a  certificate  of 
deposit,  "  payable  on  return  of  this  certificate,"  is  equivalent 
to  a  note;6  or,  with  the  words  added,  "which  sum  the  bank 
will  pay  to  him  or  his  order;"7  or,  "payable  in  current  bank 
bills  ;"8  or  even,  in  some  States,  "payable  in  currency,"  cur- 
rency being  in  such  cases  held  equivalent  to  money  ;9  but  not 
a  certificate  of  deposit  "payable  in  current  funds;"10  nor,  in 
England,  a  certificate  of  deposit  "to  be  returned  on  demand," 
but  intended  merely  for  purposes  of  stock  speculation.11 
The  same  reasoning  is  applicable  to  receipts  for  money  con- 

'Chadwick  v.  Allen,  1  Stra.706. 

"Smith  v.  Allen,  5  Day  337  (1812) ;  Kimball  v.  Huntington,  10  Wend.  675 
(1833) ;  Mitchell  v.  Rome  R.  R.  Co.,  17  Ga.  574  (1855) ;  Marrigan  v.  Page,  4 
Humph.  247  (1843) ;  Pepoon  v.  Stagg,  1  Nott  &  McC.  102  (1818)  ;  Carver  v. 
Hayes,  47  Me.  257  (1859)  ;  Potts  v.  Coal  Company,  6  Phila.  249  (1867) ;  Rich- 
mond, &c,  R.  R.  v.  Snead,  19  Gratt.  354  (1869).  See,  too,  Ubsd'ell  v.  Cun- 
ningham, 22  Mo.  124  (1855) ;  Corbett  v.  State  of  Georgia,  24  Ga.  287  (1858). 

3Bilderback  v.  Burlingame,  27  111.  338  (1862),  under  the  Illinois  statute. 

1  Bowie  v.  Foster,  Minor  264  (Ala.  1824). 

5  Brooks  v.  Elkins,  2  M.  &  W.  74. 

6Miller  v.  Austen,  13  How.  218,  affirming  Austen  v.  Miller,  5  McLean 
153;  Bean  v.  Briggs,  1  Iowa  488;  Johnson  v.  Bainey,  lb.  531;  Laughlin  v. 
Marshall,  19  III.  390;  Poorman  v.  Mills.  35  Cal.  118;  Tripp  v.  Curtenius,  36 
Mich.  494  (1877) ;  Drake  v.  Markle,  21  Ind.433  (1863) ;  Carey  v.  McDougald, 
7  Ga.  85  (1849). 

7  Carey  v.  McDougald,  supra. 

8  Pardee  v.  Fish,  60  N.  Y.  265  (1875). 

'Klauber  v.  Biggerstaff,  47  Wis.  551  (1879);  Hart  v.  Life  Assoc,  54  Ala. 
495  (1875) ;  DrakeV  Markle,  21  Ind.  434  (1863)  ;  Howe  v.  Hartness,  II  Ohio 
St.  449  (1860).  But  see,  contra,  Huse  v.  Hamblin,  29  Iowa  50  (1870) ;  Ford 
v.  Mitchell,  15  Wis.  334. 

10Lindsey  v.  McClelland,  18  Wis.  505  (1864) ;  Johnson  v.  Henderson,  76  N. 
C.  227  (1877). 

"Sibree  v.  T-ripp,  15  M.  &  W.  23  (1846),  Pollock,  C.  B.,  saying  in  this  case, 
"  it  seems  to  me  that  a  promissory  note,  whether  referred  to  in  the  statute 
of  Anne  or  in  the  text  books,  means  something  which  the  parties  intend  to 
be  a  promissory  note."  It  was,  therefore,  held  not  to  require  stamping  as 
a  promissory  note. 


MUNICIPAL    WARRANTS.  109 

taining  a  promise  of  repayment.  Thus,  "received  of  A.  B„ 
£100,  which  I  promise  to  pay  on  demand,"  has  been  held  to 
be  a  good  note.1  So,  a  receipt  for  money  "to  be  returned 
when  called  for."2  But  a  certificate  in  these  words:  "The 
bearer  leaves  $100  in  my  hands,  which  sum  I  hold  subject 
to  hrs  order,"  is  not  a  negotiable  instrument;3  much  less  a 
mere  statement  of  receipt  intended  for  evidence  of  moneys 
to  be  accounted  for.4  Neither  is  a  receiver's  certificate  of 
indebtedness,  made  by  order  of  court  to  A.  B.  or  bearer,  and 
payable  out  of  a  particular  fund,  a  negotiable  instrument;5 
nor,  in  general,  a  receipt  for  personal  property  (wool),  al- 
though "payable  in  six  months."6  But  in  some  of  the 
United  States  promises  to  pay  personal  property  and  ac- 
knowledgments of  such  property  being  due  to  another,  are 
made  negotiable  notes  by  statute.7 

§  91.  Municipal  Warrants  —  Coupons. — Lastly,  ordinary 
warrants,  orders  and  certificates  of  indebtedness  drawn  by 
one  county,  township  or  other  municipal  officer  on  another 
in  favor  of  creditors  of  the  municipality,  although  they  may 
be  so  far  negotiable  as  to  pass  by  indorsement  or  delivery, 
and  be  sued  by  the  holder  in  his  own  name,  "yet,"  in  the 
language  of  Mr.  Justice  Dillon,  "they  are  not  commercial  or 
negotiable  paper  in  the  hands  of  holders  so  as  to  exclude 

'Ashby  v.  Ashby,  3  Moo.  &  P.  186  (1829) ;  Green  v.  Davies,  4  B.  &  C.  235 
(1825). 

2Woodfolk  v.  Leslie,  2  N.ott  &  McC.  585  (1820). 

'Roman  v.  Terna,  40  Tex.  306  (1874),  holding  such  an  instrument  to  be 
a  non-negotiable  letter  of  credit.  But  an  indorsement  of  a  note  "A.  B., 
holder,"  is  a  sufficient  "assumption  of  liability  "  to  hold  the  indorser  with- 
out a  demand,  Bean  v.  Arnold,  16  Me.  251  (1839). 

4Tomkins  v.  Ashby,  6  B.  &  C.  541  (1827),  and  such  instrument  need  not  be 
stamped  as  a  note. 

■"Turner  v.  Peoria,  &c,  R.  R.,  95  111.  134  (1880) ;  Union  Trust  Co.  v.  Chicago 
R.  R.,  7  Fed.  Rep.  513  (1881). 

6  Martin  i».  Butler,  Wright  553. 

'This  is  the  case  in  Colorado  (1877  G.  L.  110  \  90) ;  Idaho  (1875  R.  L.  648 
13  1-4) ;  Illinois  (1845  R.  S.  384 ;  1880  R.  S.,  Hurd's  Ed.,  c.  98  gg  3-7) ;  Indiana 
(1876_1  R.  S.,  Davis'  Ed.,  c.  177  \\  1-4 ;  vol.  2  p.  35  \  6) ;  Iowa  (1880  Rev.  Code 
§  2085),  "whenever  it  is  manifest  from  their  terms  that  such  was  the  inten- 
tion of  their  maker,  but  the  use  of  the  technical  words  'order'  or  'bearer' 
alone  will  not  manifest  such  intention."  So,  in  Wisconsin,  warehouseman's 
receipts  are  made  negotiable  by  statute  (1878  R.  S.  \\  1675,  1676). 


110  FORM THE    CONTRACT    FOR    PAYMENT. 

inquiry  into  the  legality  of  their  issue  or  preclude  defenses 
thereto."1  This  class  of  instruments  includes  also  school- 
district  warrants;2  and  has  been  extended  even  to  a  munici- 
pal promissory  note  given  for  a  loan  not  authorized  by 
statute.3  On  the  other  hand,  interest  coupons  payable  to 
bearer  are  negotiable,  although  detached  from  the  bond  to 
which  they  belong.4 

ll  Dillon  on  Miin.  Corp.  §  406 ;  1  Parsons  26;  1  Daniel  393;  Knapp  v. 
Mayor,  &c,  of  Hoboken,  10  Vrooni  394  (1877) ;  Mayor  v.  Ray,  19  Wall.  46S 
(1873) ;  Read  v.  Buffalo,  67  Barb.  526  (1877)  ;  Fairchild  v.  Ogdensburgh  R. 
R.,  15  N.  Y.  338;  Bull  v.  Sims,  23  lb.  570;  Oatman  v.  Taylor,  29  lb.  657; 
Kelley  v.  Brooklyn,  4  Hill  263  (1843) ;  Smith  v.  Cheshire,  13  Gray  318 ;  Matthis 
v.  Town  of  Cameron,  62  Mo.  504  (1876) ;  Burlington  R.  R.  v.  Clay  County, 
13  Neb.  367  (1882) ;  People  v.  Johnson,  100  111.  537  (1881) ;  Ohio  v.  Treasurer 
of  Liberty  Township,  22  Ohio  St.  144  (1871) ;  Allison  v.  Juniata  County.  50 
Penna,  St.  351  (1865)  ;  Emery  v.  Inhabitants  of  Mariaville,  56  Me.  315  (1868) ; 
East  Union  Township  v.  Ryan,  86  Penna.  St.  459  (1878) ;  Camp  v.  Knox 
County,  3  B.  J.  Lea  199  (1879) ;  Hyde  v.  Franklin  County,  27  Vt.  185  (1855) ; 
Taft  v.  Pittsford,  28  lb.  286  (1856);  Talty  v.  Freed  man's  Trust  Co.,  1  Mac- 
Arth.522;  Sturtevantu  Inhabitants  of  Liberty,  46  Me.  459;  Stater.  Dubuclet, 
23  La.  An.  267  (1871) ;  Second  Nat.  Bank  v.  Lansing,  1  Mich.  N.  P.  181 
(1870) ;  Eaton  v.  Berlin,  49  N.  H.  219 ;  Clark  v.  Polk  Co.,  19  Iowa  248  (1865) : 
People  v.  Supervisors,  11  Cal.  170  (1858);  Dana  v.  San  Francisco,  19  lb.  486 
(1861);  Dyer  v.  Covington  Township,  19  Penna.  St.  200  (1852);  O'Donnell 
v.  City  of  Phila.,  2  Brewst.  481  (1868).  But  see,  contra,  Dalrymple  v.  Whit- 
ingham,  26  Vt.  345  (1854),  where  a  warrant  on  the  town  treasurer  was  held 
to  be  negotiable.  A  U.  S.  militia  voucher  is  not  negotiable,  Creighton  v. 
Black,  2  Mont.  354  (1878) ;  U.  S.  Rev.  St.  \  3477.  But  parish  warrants  have 
been  held  to  be  negotiable  in  Louisiana,  Guilfort  v.  Parish  of  Ascension,  28 
La.  An.  413  (1876).  And  county  warrants  in  Illinois,  Garvin  v.  Wiswell, 
83  111.  215.  And  in  Pennsylvania  until  1849,  Craig  v.  Richmond  District, 
1  Phila.  33  (1850). 

2 Fox  v.  Shipman,  19  Mich.  218  (1869) ;  School  District  v.  Stough,  4  Neb. 
357  (1876) ;  State  v.  Huff,  63  Mo.  288  (1876). 

'Town  of  Hackettstown  v.  Swackhamer,  8  Vroom  198  (1874). 

4 Clark  v.  Iowa  City,  20  Wall.  583  (1874);  Walnut  v.  Wade,  13  Otto  683 
(1880) ;  Thomson  v.  Lee  County,  3  Wall.  327 ;  First  Nat.  Bank  v.  Mt.  Tabor. 
52  Vt,  93  (1879) ;  Thompson  v.  Perrine,  16  Otto  589  (1882) ;  Haven  v.  Grand 
Juno.  R.  R.,  109  Mass.  88  (1871) ;  Beaver  Co.  v.  Armstrong,  44  Penna.  St.  63 : 
Burroughs  v.  Commissioners  of  Richmond  Co.,  65  N.  C  234  (1871) ;  Gelpcke 
v.  City  of  Dubuque,  1  Wall.  175  (1863);  Evertsen  v.  National  Bank,  66  N. 
Y.  14  (1876). 


WHAT    [S    A    CONDITIONAL    PROMISE.  Ill 


II.    ITS    UNCONDITIONAL    CHARACTER. 

92.  What  is  a  Conditional  Promise. 

93.  WThat  are  not  Conditions. 

94.  The  Condition  must  be  Expressed. 

95.  Effect  of  Subsequent  Performance. 

§  92.  What  is  a  Conditional  Promise. — It  is  a  rule  governing 
all  forms  of  commercial  paper  alike,  that  the  instrument  must 
be  payable  unconditionally,  or,  as  it  is  often  expressed,  "at  all 
events."  Otherwise,  although  it  remain  valid  as  a  conditional 
contract,  it  must  lose  its  force  as  a  negotiable  instrument.1 

The  following  instruments  have  been  held  to  be  conditional 
and  therefore  not  commercially  negotiable:  "if  I  am  then 
living;"2  "provided  the  terms  mentioned  in  my  letter  are 
complied  with  ;"3  subject  to  a  contract  or  policy  of  insur- 

^yles  95;  Chitty  155;  1  Daniel  45;  1  Edwards  \  155;  1  Parsons  42;  Storv 
on  Bills  I  46;  Story  on  Prom.  Notes  \  21;  Cook  v.  Satterlee,  6  Cow.  108 
(1826) ;  Carlos  v.  Fancourt,  5  T.  R.  482;  Worley  v.  Harrison,  3  Ad.  &  E.  669 
(1835);  Conover  v.  Stillwell,  5  Vroom  54  (1869)  :  Third  Nat.  Bank  u.  Arra- 
<tr.»ns:,  25  Minn.  531  (1878)  ;  Carnahan  v.  Pell,  4  Col.  190  (187S) ;  Dillev  r. 
Van  Wie,  6  Wis.  209;  Blaikie  v.  Griswold,  10  lb.  293;  Van  Steenwyk  v. 
Sackett,  17  76.  645;  Kingsbury  t>.  Wall,  68  111.  311 :  Smallev  v.  Edey,  15  III. 
.".24  (1853) ;  Overton  v.  Tyler,  3  Penna.  St.  346  (1846) ;  Mast  v.  Matthews,  3D 
Minn.  441  (1883) ;  Edwards  v.  Ramsey,  76.  91 ;  Stevens  v.  Johnson,  28  lb.  172 
(1881);  Tradesman's  Nat.  Bank  v.  Green,  57  Md.  602  (1881);  Hosstatter  v. 
Wilson,  36  Barb.  307. 

In  California,  negotiable  instruments  must  be  "without  any  condition  not 
certain  of  fulfillment"  (Civ.  Code  of  1872  \  8088);  but  an  option  to  pay  or 
perform  some  other  act,  in  itself  non-negotiable,  does  not  destroy  the  nego- 
tiability of  tbe  instrument  (lb.  \  8090). 

In  Dakota  the  above-mentioned  provisions  of  the  California  Code  have 
been  copied  (Rev.  Code  1877  U  1822,  1824). 

In  Tennessee  bonds  with  collateral  conditions  and  bills  or  notes  for  specific 
articles,  or  for  the  performance  of  any  duty,  are  made  assignable,  but  not 
negotiable  (1871  C.  S.  \  1967  ;  1801  P.  L.  c.  6*§54  modified).  So,  the  English 
Bills  of  Exchange  Act  1S82,  45  and  46  Vict.  c.  61  \  3,  requires  negotiable 
bills  to  be  unconditional.  By  recent  statute  of  Indiana  (1875  P.  L.  4;  1  R. 
8.1876  p.  149)  "any  and  all  agreements  to  pay  attorney  fees,  depending 
upon  any  condition  therein  set  forth  and  made  part  of  any  bill  of  exchange, 
acceptance,  draft,  promissory  note,  or  other  written  evidence  of  indebted- 
-,  are  hereby  declared  illegal  and  void."  This  statute  applies,  however, 
only  to  such  agreements  on  a  condition  expressed  in  the  instrument, 
Churchman  v.  Martin,  54  Ind.  380;  Brown  v.  Barber,  59  76.  533 ;  Smock  v. 
Ripley,  62  lb.  81 ;  Garver  v.  Pontious,  66  76.  191. 

2Chitty  157;  Braham  v.  Bubb,  Trim  Term  1826,  Middlesex,  Abbott,  C.  J., 
distinguishing  this  case  from  that  of  a  note  payable  at  the  maker's  death. 

■Kingston  v.  Lone:.  Bayley  16,  6th  Ed.;  4  Dougl.  9.  And  see,  Greelev. 
Parker,  5  Wend.  414  (1830),  where  it  was  held  that  an  acceptance  "on  the 
terms  proposed"  threw  no  burden  on  the  holder  of  proving  what  the  terms 
were,  following  Read  v.  Wilkinson,  2  Wash.  C.  C.  514. 


112  FORM THE    CONTRACT    FOR   PAYMENT. 

ance  ;l  "if  not  revoked  and  (the  payee)  continue  in  my  em- 
ploy;"2 "provided  he  proceeds  to  sea;"3  "if  he  do  his  duty 
as  an  able  seaman  ;"*  "provided  the  ship  M.  arrives  *  *  * 
free  from  capture  and  condemnation  by  the  British  ;"5  "pro- 
vided A.  B.  shall  not  return  to  England  or  his  death  be  duly 
certified  before"  the  time  of  payment;6  "provided  A.  B. 
shall  not  be  surrendered  to  prison"  within  a  certain  limited 
time  ;7  "providiug  that  a  certain  mortgage  be  paid  and  can- 
celed;"8 on  condition  of  the  deliverv  of  a  certain  deed;9 
provided  A.  B.  shall  not  pay  by  a  certain  day  ;10  on  the  death 
of  A.  B.,  "provided  he  leaves  us  sufficient  to  pay  that  sum, 
or  if  we  otherwise  shall  be  able  to  pay  it;"11  not  to  ask  or 
expect  payment  "until  (maker's)  old  mill  is  sold  at  a  fair 
price."12  So,  by  contemporaneous  indorsement,  "no  demand 
to  be  made  as  long  as  the  interest  is  paid;"13  or,  a  note  for 
payment  of  interest  only,  unless  the   principal   should  be 

Pushing  v.  Fifield,  70  Me.  50  (1879);  Am.  Exch.  Bank  v.  Blanchard.  7 
Allen  333  (1863).  See  also,  Taylor  v.  Curry,  109  Mass.  36  (1871),  where  the 
added  words  "on  policy  No.  33"  were  held  not  to  affect  the  negotiability 
of  the  note.  But  a  marginal  memorandum  "given  as  collateral  security 
with  agreement."  is  part  of  a  note  and  renders  it  conditional  and  therefore 
non-negotiable,  Costelo  v.  Crowell,  127  Mass.  293  (1879). 

2Shaver  v.  West.  Un.  Tel.  Co.,  57  N.  Y.  459  (1874). 

8Loftus  u.  Clark,  1  Hilt,  310  (1857) ;  James  v.  Hagar,  1  Daly  517  (1865). 

*Chitty  156;  Alves  v.  Hodgson,  7  T.  R.  242. 

6Coolidge  v.  Ruggles,  15  Mass.  387  (1819).  So,  if  made  payable  simply 
on  the  arrival  of  a  certain  ship,  Palmer  v.  Pratt,  9  Moore  358;  S.  C,  2  Bing. 
185 ;  or  after  its  arrival  and  discharge  of  coal,  Grant  v.  Wood,  12  Gray  220 
(1858). 

6Chitty  156;  Morgan  v.  Jones,  1  Cromp.  &  J.  162. 

7Chitty  156;  Smith  v.  Boehm,  Gilb.  Cas.  L.  &  E.  93;  Beardesley  v.  Bald- 
win, 7  Mod.  418;  S.  C,  2  Stra.  1151. 

"Hays  v.  Gwin,  19  Ind.  19  (1862). 

•Kingsbury  v.  Wall,  68  111.  311  (1873). 

10Chitty  156;  Appleby  v.  Biddulph,  cited  8  Mod.  363;  4  Vin.  Abr.  240  pi. 
16 ;  Smalley  v.  Edey,  15  111.  324  (1853) ;  Baird  v.  Underwood,  74  111.  176 
(1874). 

"Roberts  v.  Peake,  1  Burr.  323. 

"Blake  v.  Coleman,  22  Wis.  415.  And  where  a  note  was  conditioned  that 
a  certain  "  farm  sold  by  the  sheriff  should  not  be  redeemed  by  that  time,"  it 
was  held  unnecessary  to  aver  any  consideration  in  declaring  upon  it,  Nichols 
v.  Woodruff,  8  Blackf.  493. 

"Chitty  162;  Seacord  v.  Burling,  5  Den.  444  (1848).  But  not  an  indorse- 
ment stating  that  a  note  was  given  upon  the  condition  mentioned  in  an 
agreement  compromising  a  suit,  where  the  indorsement  was  only  made  for 
the  purpose  of  identification,  Brill  v.  Crick,  1  M.  &  W.  232. 


WHAT    IS    A    CONDITIONAL    PROMISE.  113 

necessary  for  the  support  of  the  payee;1  or  "after  my  ad- 
vances are  paid;"2  or  if  a  receipt  be  returned;3  or  "on 
return  of  this  certificate  and  my  guaranty  of  another  note  ;"4 
or  on  condition  that  the  payee  deliver  a  certain  deed  on  de- 
livery of  the  goods,  for  which  the  order,  otherwise  negotiable, 
was  given.5  So,  a  note  for  a  reaping  machine,  otherwise 
negotiable,  but  conditioning  the  title  to  the  machine  on  the 
payment  of  the  note;6  or  an  otherwise  negotiable  receipt  for 
wheat  to  be  held  "unless  taken  by  law  from  me;"7  or  "less 
$55  in  the  event  that  T.  fails  to  deliver"  certain  goods;8  or 
to  pay  "if  the  same  be  due  him  from  me  on  his  and  my 
settlement  out  of  the  last  payment  on  houses  which  I  am 
now  building;"9  or  "on  account  of  my  share  of  rent  which 
will  be  due  June  1st;"10  or  "out  of  the  fifth  payment  when 
it  should  be  due  and  allowed."11  So,  a  promise  to  pay  £13 
"and  all  fines  according  to  the  rule;"12  or  $100  "and  take 
up  their  note  to  A.  B.  for  that  amount;"13  or  on  condition 
of  the  payee  paying  another  note  of  the  same  maker.14  So,  a 
receipt  for  certain  drafts  payable  to  the  maker  of  the  receipt, 
"which  we  promise  to  pay  to  A.  B."15     So,  an  order  for  the 

'Light  v.  Scott,  88  111.  239  (1878).  So,  a  note  payable  in  four  years  with 
interest,  "  not  to  be  paid  annually  "  unless  the  promisor  "  can  make  it  con- 
venient," is  a  conditional  note  and  not  negotiable,  Humphrey  v.  Beckwith, 
48  Mich.  151  (1882). 

2Shackleford  v.  Hooker,  54  Miss.  716  (1877). 

3 Mason  v.  Metcalf,  4  Baxt.  440  (1874). 

4Smilie  v.  Stevens,  39  Vt.  315  (1866).  But  see  infra  p.  115  n.  1  for  a  con- 
trary rule  where  it  is  merely  payable  "on  the  return  of  this  certificate." 

5 Kingsbury  v.  Wall,  68  111.  311. 

•Third  Nat.  Bank  v.  Armstrong,  25  Minn.  531  (1878). 

'Carnahan  v.  Pell,  4  Col.  190  (1878). 

•Faull  v.  Tinsman,  36  Penna.  St.  108  (1859).  So,  a  note  for  $60  with  the 
provision  that  "if  $50  be  paid  January  1st  it  shall  cancel  this  note,"  Fralick 
v.  Norton,  2  Mich.  130  (1851). 

"Jackman  v.  Bowker,  4  Mete.  235  (1842). 

,0Rioe  v.  Porter's  Admr.,  1  Harr.  440  (N.  J.  1838).  So,  an  order  to  pay,  "  if 
in  funds,"  is  not  a  bill  of  exchange,  Kemble  v.  Lull,  3  McLean  272  (1843). 

"Haydock  v.  Lynch,  2  Ld.  Raym.  1563. 

"Ayrey  v.  Fearnsides,  4  M.  &  VV.  168. 

18 Cook  v.  Satterlee,  6  Cow.  108  (1S26). 

"Henry  v.  Colman,  5  Vt.  402  (1833).  So,  if  a  certain  other  note  is  not 
paid,  Grimison  v.  Russell,  14  Neb.  521  (18S3). 

"Williamson  v.  Bennett,  2  Campb  417. 

H 


114  FORM — THE    CONTRACT    FOR    PAYMENT. 

payment  of  a  non-negotiable  conditional  note;1  or  an  order 
for  payment  "according  to  a  donation  made  to  the  parish, 
the  same  to  be  in  accordance  with  a  resolution  of  the  police 
jury  ;"2  or  to  pay  in  installments  as  a  certain  building  should 
be  finished;3  or  on  condition  that  a  certain  railroad  be  built 
to  G.  by  February,  1871  ;4  or  payable  six  months  "after 
ratification  of  peace  between  the  United  States  and  the  Con- 
federate States;"5  or  containing  an  option  to  pay  or  render 
A.  B.  to  prison  ;6  or  an  election  to  pay  a  certain  judgment  or 
lose  amount  of  money  already  paid  ;7  or  a  promise  to  pay  "  as 
a  set-off  for  the  sum  left  me  in  my  father's  will  ;"8  or  to  go 
as  a  set-off  for  a  certain  order  and  the  remainder  of  a  debt.9 

But  an  agreement  to  pay  £50  "  for  a  cart  for  the  use  of 
A.  B.,  to  be  paid  without  fail  in  three  weeks,"  has  been  held 
to  be  rather  an  agreement  than  a  note;10  as  also,  a  note  in- 
dorsed, "  this  note  is  taken  for  security  of  balances  not 
extending  further  than  within-named  sum  and  is  not  to  be 
in  force  for  six  months."11 

§  93.  What  are  not  Conditions. — On  the  other  hand  the 
following  provisions  in  an  instrument  have  been  held  to 
leave  it  still  unconditional  and  negotiable,  e.  g.  "  as  per 
memorandum  of  agreement;"12  "on  return  of  this  certifi- 

*Noyes  v.  Gilman,  65  Me.  589  (1876). 

2  Jenkins  v.  Caddo,  7  La.  An.  559  (1852). 

3 Miller  v.  Excelsior  Stone  Co.,  1  Bradw.  273  (1878).  So,  too,  though  the 
contingency  afterward  happen,  White  v.  Smith,  77  111.  351. 

4Eldred  v.  Mallov,  2  Col.  320  (1874);  Blackmail  v.  Lehman,  63  Ala.  547 
(1879).  And  see  Freeman  v.  Matlock,  67  Ind. 99;  9  C.  L.  J.  479.  But  a 
note  payable  in  four  years,  taking  up  a  note  which  was  made  payable  when 
a  certain  railroad  should  be  completed,  is  independent  of  any  such  condi- 
tion, Four  Mile  V.  R.  R.  v.  Bailey,  18  Ohio  St.  208  (1868). 

5McNiach  v.  Ramsay,  66  N.  C.  229  (1S72). 

"Smith  v.  Boehme,  Gilb.  Cas.  L.  &  E.  93.  In  California  (1872  Civ.  Code 
I  8090)  and  in  Dakota  (1877  Rev.  Code  I  1824),  however,  an  option  to  pay  or 
perform  some  other  act,  in  itself  non-negotiable,  does  not  destroy  the  nego- 
tiability of  the  instrument.  And  see  Dinsmore  v.  Duncan,  57  N.  Y.  573 
(1874),  cited  infra. 

7  Draper  v.  Fletcher,  26  Mich.  154. 

"Clarke  v.  Percival,  2  B.  &  Ad.  660. 

9Chitty  157  ;  Davies  v.  Wilkinson,  2  Perry  &  D.  256. 

10Chitty  157;  Ellis  v.  Ellis,  Gow.  216. 

11  Leeds  v.  Lancashire,  2  Campb.  205  ;  see,  too,  Robins  v.  May,  11  Ad.  &  E.  214. 

12Jurv  v.  Barker.  El.  Bl.  &  E.  459  (1858)  ;  and  see  note  to  this  case,  96  E.  C. 
L.  R.  459;   Littlerield  v   Hodge,  ii  Mich.  326  (1859). 


WHAT    AEE    NOT    CONDITIONS.  115 

cate;"1  on  receiving  wages  from  a  public  ship  and  prize- 
money  ;2  "provided  the  money  is  not  collected  in  the  mean- 
time from  A.;"3  "  with  ten  per  cent,  interest  if  not  paid  when 
due  ;"4  provided  the  payee  deliver  the  crop  of  tobacco  raised 
by  him,  then  he  to  have  one-fourth  of  the  above  in  hand  and 
in  addition  $3  per  hundred  weight  for  the  part  yet  undeliv- 
ered.5 So,  in  a  note  for  insurance  premium,  the  provision 
that  "  if  not  paid  at  maturity,  the  whole  amount  of  premium 
on  said  policy  shall  be  considered  as  earned  and  the  policy 
be  null  and  void  so  long  as  this  remains  unpaid."6  So,  "this 
note  to  be  valid  as  part  pay  for  a  piano  bought  of  me  at 
retail  price."7  So,  an  agreement  to  "pay  A.'s  draft  $2,300, 
for  stock,"  is  an  unconditional  acceptance.8  And  an  agree- 
ment, recited  as  consideration  in  the  note,  to  show  property 
•of  A.,  from  which  the  maker  of  the  note  can  make  another 
debt  due  him,  is  an  independent  agreement  and  does  not 
render  the  note  conditional.9  Likewise,  a  recital  that  on 
payment  of  the  note  the  payee  shall  sell  a  certain  machine 
to  the  maker  of  the  note.10  It  has  also  been  held  that  an 
option  in  a  promissory  note  reserving  the  right  to  .pay  it  in 
U.  S.  bonds,  is  not  a  condition  and  does  not  impair  the  nego- 
tiability of  the  note.11     Nor  is  the  negotiability  of  a  railroad 

1  Fells  Point  Sav.  Inst,  v.  Weedon,  18  Md.  320  (1862) ;  Frank  v.  Weasels,  64 
N.  Y.  155  (1876),  Church,  C.  J.,  saying,  in  this  case,  of  Patterson  v.  Poin- 
dexter,  6  W.  &  S.  227,  "  the  intimation  as  to  the  effect  of  the  clause  requir- 
ing a  return,  is  not  authoritative  and  has  not  been  followed  in  this  State  or 
elsewhere."  So,  too,  Bean  v.  Briggs,  1  Iowa  488  (1855);  Drake  v.  Markle, 
21  Ind.  433  (1863). 

2 Evans  v.  Underwood,  1  Wils.  262. 

1  Pemberton  v.  Hoosier,  1  Kans.  108  (1862). 

*  Houghton  v.  Francis,  29  111.  244  (1862).  But  see  Third  Nat.  Bank  v. 
Armstrong,  25  Minn.  530  (1879).  And  a  provision  for  adding  collection  fees 
"  in  case  of  non-payment  at  maturity,"  is  a  condition,  Sweeney  v.  Thickstun, 
77  Penna.  St.  131  (1874).  So,  an  agreement  in  a  two-year  note,  that  if  paid 
in  one  year  there  should  be  no  interest,  is  a  condition  which  destroys  its 
negotiability,  Lamb  v.  Story,  45  Mich.  488  (1881). 

5 Kin-  v.  Foster,  6  Ohio  279  (1834). 

6 Kirk  v.  Dodge  Co.  Mut.  Ins.,  39  Wis.  138  (1875). 

7  And  such  note  can  be  enforced  if  the  payee  refuses  to  take  the  piano, 
Preston  v.  Whitney,  23  Mich.  260. 

"Coffman  v.  Campbell,  87  111.  98  (1877). 

9  Plumb  v.  Niles,  34  Vt.  330  (1S61). 

10Hawley  v.  Bingham,  6  Or.  76  (1876). 

"Dinsmore  v.  Duncan,  57  N.  Y.  573  (1874). 


116  FORM THE    CONTRACT    FOR    PAYMENT. 

company's  bond  affected  by  a  provision  that  it  may  be  regis- 
tered and  so  made  transferable  only  on  the  company's  books.1 

§  94.  The  Condition  Must  be  Expressed. — All  conditions, 
to  affect  the  negotiability  of  commercial  paper,  must  appear 
on  its  face.2  And  the  mere  words  "  this  note  is  given  on 
condition,"  with  nothing  further  to  show  what  the  condition 
is,  are  wholly  immaterial  and  may  be  erased  without  mate- 
rial alteration  of  the  paper.3  Moreover  the  unconditional 
renewal  of  a  note  is  free  from  any  condition  expressed  in  the 
original  note.4  And  a  note  is  not  rendered  conditional  by  a 
condition  not  expressed  in  it  but  expressed  in  the  mortgage 
given  to  secure  it.5  Where  a  condition  does  not  appear  o-n  the 
face  of  the  instrument  it  is  not  competent  to  prove  it  by  parol.6 

§  95.  Effect  of  Subsequent  Performance. — Where  the  nego- 
tiability of  an  instrument  is  vitiated  by  a  contingency  ex- 
pressed  in  it,  this  defect  is   not  cured   by  the  subsequent 

'Savannah,  &c,  R.  R  Co.  v.  Lancaster,  62  Ala.  555  (1878). 

2Byles  96;  Richards  v.  Richards,  2  B.  &  Ad.  447.  And  a  note  given  for 
payment  of  a  stock  subscription  and  absolute  in  its  terms,  amounts  to  a 
waiver  of  the  condition  as  to  location  and  building  of  the  railroad  contained 
in  the  subscription,  Evansville  R.  R.  v.  Dunn,  17  Ind.  603  (1861).  From  the 
rule  requiring  all  conditions  to  appear  in  the  instrument,  it  follows  that  a 
verbal  condition  subsequent  providing  for  the  return  or  cancellation  of 
a  former  note  cannot  affect  a  bona  fide  holder  for  value,  Goddard  v.  Cutts, 
11  Me.  440  (1834). 

3  Palmer  v.  Sargent,  5  Neb.  223  (1876). 

♦Rogers  v.  Boardman,  27  Tex.  238  (1863). 

5Albright  v.  Russell,  5  Neb.  207  (1876).  But  the  rule  is  different  if  the 
note  is  expressly  made  subject  to  the  condition  contained  in  the  mortgage, 
Goodenow  v.  Curtis,  33  Mich.  505  (1876).  See,  too,  Titlow  v.  Hubbard,  63 
Ind.  6  (1878).  On  the  other  hand  an  indorsement  on  a  mortgage  ''  on  same 
condition  as  per  note  of  this  date,"  was  held  sufficient  to  give  the  mortgage 
force  as  a  duplicate  of  the  note,  Grinnell  v.  Baxter,  17  Pick.  386  (1835).  So 
a  collateral  agreement  for  the  discontinuance  of  a  suit  is  not  a  condition 
precedent  to  payment  of  the  note,  Bruce  v.  Carter,  72  N.  Y.  616  (1878). 

6Cunningham  v.  Wardwell,  12  Me.  466  (1835),  where  the  maker  offered  to 
show  that  the  note  was  payable  only  on  condition  of  the  safe  arrival  of  a 
certain  cargo.  See,  too,  Brown  v.  Wilev,  20  How.  442  (1857);  McSherrv  v. 
Brooks,  46  Md.  103  (1876) ;  Gliddons  v.  Harrison,  59  Ala,  481  (1877) ;  Jones 
v.  Shaw,  67  Mo.  667  (1878) :  Henshaw  v.  Dutton,  59  lb.  139  (1875) ;  Calhoun 
v.  Davis,  2  Ind.  532  (1851) ;  Sears  v.  Wright,  24  Me.  278  (1844) ;  Miller  v. 
White,  7  Blackf.  491  (1845);  Dale  v.  Pope,  4  Litt.  166  (1823);  Beard  v. 
White,  1  Ala.  436  (1840) ;  McCoy  v.  Moss,  5  Porter  88  (1837) ;  Rice  v.  Rag- 
land,  10  Humph.  545  (1850);  Campbell  v.  Upshaw,  7  lb.  185  (1846);  Gazo- 
way  v.  Moore,  Harper  401  (1824);  McClanaghan  v.  Hines,  2  Strobh.  122 
(1847);  Rodgers  v.  Rosser,  57  Ga.  319  (1876);  Scaife  v.  Beall,  43  lb.  333 
(1871) ;  Rockmore  v.  Davenport,  14  Te«c.  602  (1855) ;  McGrath  v.  Barnes,  13 
So.  Car.  328  (1879). 


EFFECT   OF    SUBSEQUENT    PERFORMANCE.  117 

happening  of  the  contingent  event.1  But  a  different  rule 
seems  to  have  been  followed  in  Maine,  where  a  note,  payable 
"  if  there  is  anything  over "  in  a  certain  settlement  to  be 
made,  was  held  to  be  absolute  after  a  settlement  made  show- 
ing a  balance.2 

An  action  will  in  all  cases  lie  upon  a  contingent  note  on 
proof  of  the  happening  of  the  contingency ;  even,  it  seems, 
on  a  note  partaking  somewhat  of  the  character  of  a  wager  and 
made  payable  "  when  W.  H.  H.  shall  be  elected  President 
of  the  United  States."3  And  after  the  contingency  has  hap- 
pened, it  may  be  declared  on  as  a  note.4  And  it  seems  that 
it  may  be  declared  on  as  a  note  notwithstanding  the  con- 
tingency in  New  Hampshire.5  The  performance  of  the  con- 
dition must,  however,  be  shown  before  a  recovery  can  be 
had  on  the  instrument.6  What  constitutes  performance  of 
the  condition  is  a  question  of  fact  for  the  jury.7  A  condi- 
tion may  be  rejected,  however,  as  repugnant  and  void.  A 
proviso  in  a  bill  of  exchange  limiting  the  liability  of  the 
drawer  is  a  condition  of  this  character.8 

^yles  97;  Hill  v.  Halford,  2  B.  &  P.  413;  White  v.  Smith,  77  111.  351; 
Miller  v.  Excelsior  Stone  Co.,  1  Bradw.  273  (1S78). 

*  Stevens  v.  Androscoggin  W.  P.  Co.,  62  Me.  498  (1874). 

3  Williams  v.  Smith,  4  111.  524  (1842) ;  Gordon  v.  Casey,  23  lb.  70  (1859).  So, 
where  a  note  is  made  payable  at  a  certain  time  "  on  condition  that  the  banks 
of  Tennessee  have  resumed  payment  at  that  time,  *  *  *  and  if  not, 
as  soon  as  they  do  resume,"  Walters  v.  McBee,  1  B.  J.  Lea  364  (1878). 

*MeGehee  v.  Childress,  2  Stew.  506  (Ala.  1830). 

sOdiorne  v.  Odiorne,  5  N.  H.  315  (1831) ;  Congregational  Soc.  v.  Goddard, 
7  lb.  480  (1835).     But  see  Dicwn  v.  Smith,  3  lb.  300. 

•Shackleford  v.  Hooker,  54  Miss.  716  (1877) ;  Nagle  v.  Horner,  8  Cal.  353. 
And  where,  for  instance,  a  note  for  $75  contains  a  condition  that  "if  paid 
by  April  1st,  $50  shall  discharge  it,"  a  payment  of  that  amount  on  the  ninth 
of  April,  although  before  maturity  of  the  note,  is  no  performance  of  the 
condition,  Holland  v.  Vanard,  3  Greene  230  (Iowa  1851).  But  it  seems 
that  if  the  performance  has  been  prevented  by  the  maker's  own  action  he 
cannot  avail  himself  of  the  failure,  King  v.  King,  69  Ind.  467  (1880). 

7  Jackson  v.  Stockbridge,  29  Tex.  394  (1867).  The  following  cases  may  lie 
consulted  as  to  performance  of  particular  conditions.  Locution  of  railroad : 
Davenport  &  St.  P.  R.  R.  v.  Rogers,  39  Iowa  298  (1874).  Building  of  rail- 
riiml :  Thompson  v.  Oliver,  18  Iowa  417  (1865).  Assent  of  heirs  to  payment 
in  C.  S.  A.  notes:  Martin  v.  Singleton,  23  La.  An.  551  (1871).  Rendering 
prisoner  on  capias:  Daggett  v.  Gage,  41  111.  465  (1866).  Paying  another 
note  (since  barred  by  the  Statute  of  Limitations):  Jordan  v.  Fountain.  51 
Ga.  332  i  187  t).     C.  S.  A.  conscription  :    Lively  v.  Bobbins,  39  Ala.  461  (1864). 

h  In  re  State  Fire  Ins.  Co.,  32  L.  J.  (Mi.  3(H)  (1862).  So,  an  agreement  that 
si  note  should  not  be  considered  such,  San  Jose  Sav.  Hank  u.  Stone,  59  Cal 
183  i  L88I 


118  FORM THE    CONTRACT    FOR    PAYMENT. 


III.    ITS    LIMITED    CHARACTER. 

96.  Payable  in  Money  Only — American  Statutes. 

97.  "in  Specie"— "Gold." 

98.  Legal  Tender  Act  and  Decisions. 

99.  Payable  in  "Current  Funds" — "Currency." 

100.  Bank  Notes. 

101.  Merchandise  or  Work. 

102.  "Sterling"— "Dollars." 

103.  Parol  Evidence. 

§  96.  Payable  in  Money  Only — American  Statutes. — No 
rule  of  commercial  paper  is  better  established  than  that 
which  requires  it  to  be  for  the  payment  of  money  and  money 
only.1  In  some  of  the  States  this  rule  has  been  changed  by 
statute.2     Under  the  common  law  the  following  bills  and 

1Byles94;  Chitty  153;  1  Daniel  60;  1  Edwards  §  147;  1  Parsons  45  ;  Story 
on  Bills  I  43;  Story  on  Prom.  Notes  \  17;  Hosstatter  v.  Wilson,  36  Barb. 
307. 

'■'In  Alabama  only  ''bills  of  exchange,  promissory  notes  payable  in  money 
at  a  bank  or  private  banking-house  and  paper  issued  to  circulate  as  money," 
are  made  negotiable,  other  contracts  in  writing  being  assignable  subject  to 
defense  (Code  of  1876  \  2100;  Act  of  1838).  See,  too,  Oates  v.  Nat.  Bank, 
11  Otto  239  (1879).  In  Arkansas  bills,  notes  and  other  contracts  "for  the 
payment  of  money  or  property  or  both  "  are  assignable  (Rev.  St.  1874  §  563) ; 
subject,  however,  to  equities  (§  565),  except  "bills  of  exchange  or  negotia- 
ble notes  transferred  in  good  faith  and  for  value  before  maturity,  but  such 
instruments  shall  be  governed  in  all  respects  by  the  rules  of  the  law  mer- 
chant concerning  commercial  and  negotiable  paper"  (Acts  of  1869  and 
1873  ;  Rev.  St.  1874  §  566).  Bills  of  exchange  include  drafts  or  orders  drawn 
by  one  person  on  another  "for  the  payment  of  a  certain  sum  of  money 
therein  specified"  (lb.  I  561).  In  California  "a  negotiable  instrument  is  a 
written  promise  or  request  for  the  payment  of  a  certain  sum  of  money  to 
order  or  bearer"  (Civil  Code  of  1872  \  8087).  It  must  be  "payable  in 
money  only  "  (lb.  \  8088),  although  it  may  also  "  give  to  the  payee  an  option 
between  the  payment  of  the  sum  specified  therein  and  the  performance  of 
another  act,"  but  as  to  the  latter  provision  it  is  not  negotiable  (lb.  \  8<>90). 
Other  non-negotiable  contracts  for  the  payment  of  money  or  personal  prop- 
erty are  assignable  subject  to  defense  (lb.  %  6459;  Code  Civ.  Proc.  of  1872, 
§  10368).  In  Colorado  the  statute  of  Anne  has  been  enacted,  applicable  to 
promises  to  pay  "any  sum  of  money  or  article  of  personal  property  or  any 
sum  of  money  in  personal  property,"  the  right  of  the  assignee  to  sue  his 
assignor  being  made  conditional  on  his  due  diligence  in  prosecuting  the 
maker  (Gen.  L.  1877  p.  110  U  90-94).  In  Connecticut  negotiable  promissory 
notes  must  be  "  for  the  payment  of  money  only  "  (Act  of  1811 ;  Gen.  St.  Rev. 
1875  p.  343  §  1)-  In  Dakota  the  same  provisions  have  been  enacted  as  in 
California  (Rev.  Code  1877  U  1821, 1822,  1824).  In  Georgia  a  promissory  note 
may  be  for  the  payment  of  "  money  or  other  articles  of  value  "  (Code  1873 
\  2774;  Act  of  1799;  Daniel  v.  Andrews,  Dudley  157).  In  Idaho  only  notes 
for  the  payment  of  "  a  sum  of  money  "  are  made  negotiable  (Rev.  L.  1875 
p.  652  \  1)  like  inland  bills  of  exchange,  but  the  provisions  of  the  Colorado 
statute  above  mentioned  have  been -enacted  (lb.  p.  648  \\  1-4).  In  Illinois 
the  provisions  are  the  same  as  in  Colorado  (1845  R.  S.  p.  38*4;  1880  R.  S. 


PAYABLE  IN  MONEY  ONLY.  119 

notes  have  been  held  payable  in  money  and  negotiable,  viz.: 
"in  current  money;"1  "in  current  money  of  Kentucky;"2 
"in   lawful   current  money  of  Pennsylvania;"3    "in  good 

Hnrd's  Ed.  c.  98  gg  3-7).  In  Indiana  promises  "to  pay  money  *  *  * 
and  for  the  delivery  of  a  specific  article  or  to  convey  property  or  to  perform 
any  stipulation  therein  mentioned  shall  he  negotiable"  (1  R.  S.  1876,  Davis' 
Ed.  c.  177  $  1);  subject,  however,  to  defense  {lb.  g  3),  except  in  case  of 
inland  (lb.  g  5)  anil  foreign  bills  and  notes  payable  to  order  or  bearer  in  an 
Indiana  bank  ( lb.  g  6).  In  Iowa  instruments  for  the  payment  of  a  sum  of 
money  in  property  or  labor,  or  to  deliver  property  or  labor  or  acknowledg- 
ing property  or  labor  to  be  due,  "are  negotiable  with  all  the  incidents  of 
negotiability,  whenever  it  is  manifest  from  their  terms  that  such  was  the 
intent  of  the  maker,  but  the  use  of  the  technical  words  "order"  or  "  bearer" 
alone  will  not  manifest,  such  intention,"  (Rev.  Code  1880  g  2085).  In  Ken- 
tucky all  bonds,  bills  and  notes  for  money  or  property  are  assignable  subject 
to  defense  (1877  G.  S.  c.  22  g  6).  Bills,  drafts  or  checks  payable  in  bank 
notes  or  currency  or  other  funds  are  negotiable  as  if  for  money,  except  that 
only  the  value  of  the  currency  mentioned  can  be  recovered  (1877  G.  S.  <•. 
22  g  11).  In  Maryland  the  British  statute,  3  and  4  Anne  c.  9,  is  still  in  force 
(Bill  of  Rights,  Art.  V. ;  Alexander's  Brit.  Stats,  p.  649).  In  Mississippi 
onl)7  notes  for  the  payment  of  a  sum  of  money  are  properly  negotiable,  notes 
payable  in  "any  other  thing"  being  merely  assignable  subject  to  equities 
(1880  Rev.  Code  \\  1123,  1121;  1871  Rev.  Code  gg  2227,  2228).  In  Missouri 
only  notes  "for  the  payment  of  money"  are  clothed  by  statute  with  the 
negotiable  character  of  inland  bills  of  exchange  (1  R  S.  1879  c.  10  g  547; 
1872,  Wagner  Ed.,  p.  216  g  15).  In  Nebraska  all  negotiable  instruments  must 
be  "  for  a  sum  or  sums  of  money  certain  "  (1873  G.  S  c.  32  \  1 ;  1866  R.  S. 
c.  27).  In  Nevada  negotiable  notes  must  be  for  the  payment  of  a  "sum  of 
money  therein  mentioned"  (1  Comp.  L.  1873  c.  5  g  9;  1861  P.  L.  p.  4).  So 
in  New  Jersey  (1795  Pat.  Rev.  p.  342  g  4;  1874  Rev.  p.  897  g  1).  So  in  New 
York  (2  R.  S  ,  Ed.  1S75,  p.  1160  g  1 ;  1  R.  L.  1801  p.  151).  In  North  Carolina 
negotiable  instruments  must  be  for  money  (1873  Bat.  Rev.  c.  10  g  1).  So  in 
Ohio  (1880  R.  S  g  3171;  1830  P.  L.  p.  217  \  1).  So  in  Oregon  (1872  G.  L.  p. 
717  c.  48  g  1  ;  Act  of  1854).  In  Pennsylvania,  bills  of  exchange,  drafts,  notes, 
checks,  &c,  drawn  or  indorsed  in  Pennsylvania  "payable  in  any  other 
State,  Territory,  country  or  place,"  may  be  payable  "in  current  funds"  or 
in  money  with  rate  of  exchange  or  like  qualification  superadded  (1S72  Purd. 
Dig.  p.  1173  g  2;  1849  T.  L.  p.  427  g  11).  In  Rhode  Island  negotiable  notes 
must  be  for  the  payment  of  money  only  (1872  G.  S.  c.  129  g  6).  So  in  South 
( 'arolina  (1873  R.  S.  p.  319  g  8).  So  in  Tennessee  (1762  P.  L.  c.  9  g  2 ;  1871  C. 
S.  g  1956).  And  the  same  is  true  of  every  negotiable  sealed  bill,  bond  or 
note  (1786  P.  L.  c.  4  g  1 ;  1S71  C.  S.  g  1957).  But  bills  or  notes  for  specific 
articles  are  only  assignable  (1871  C.  S.  g  1967;  1801  P.  L.  c.  6  g  54  modified  . 
In  Vermont  negotiable  bills  and  notes  must  be  for  the  payment  of  money 
(1862  G.  S.,  Ed.  1870,  p.  508  g  5).     So,  in  Virginia,  negotiable  notes  and 

cl ks  (1873  Code  c.  141  g7;  1  Rev.  Code  483  g  2).     And  in  West  Virginia 

(1879  R.  S.  c.  12  g  7).     So,  in   Wisconsin,  all  negotiable  notes  (1879  R.  S. 
1675). 

1  Bainbridge  v.  Owen,  2  J.  J.  Marsh.  463  (1829).  So,  a  bill  payable  in  "  cur- 
rent funds"  has  been  held  to  be  payable  in  current  money  and  negotiable, 
Laird  v.  State,  61  Md.  309  (1883).  If  payable  in  "current  money"  the 
amount  of  recovery  will  be  the  specie  value  of  such  currency  as  it  would  be 
most  for  the  promisor's  interest  to  have  paid,  Miller  v.  MeKinnev,  5  B.J. 
Lea  93  (1880). 

*M'Chord  v.  Ford,  3  T.  B.  Mon.  166  (1826),  there  being  no  current  money 
in  Kentucky  at  that  time  except  specie. 

3 Meaning  congressional  legal  tender,  Wharton  v.  Morris,  1  Dall.  124 
(1785). 


120  FORM — THE    CONTRACT    FOR    PAYMENT. 

current  money  of  this  State;"1  in  "  lawful  money;"2  "in 
York  State  bills  or  specie;"3  "in  exchange."4  And  ia 
Texas  notes  payable  "  in  good  solvent  cash  notes  "  have  been 
held  to  be  payable  in  money.5  The  contrary  has  been  held 
in  Alabama.6 

On  the  other  hand,  the  following  bills  and  notes  have  been 
held  not  payable  in  money  and  not  negotiable,  viz.:  "in 
New  York  funds;"7  "in  Tennessee  money;"8  "in  current 
Mississippi  bank  money;"9  "in  Tennessee  or  Alabama 
money  or  its  equivalent  ;"10  "  in  Arkansas  money  of  the  Fay- 
etteville  Branch;"11  "in  Canada  money,"  the  note  being 
made  in  the  United  States;12  "in  Brandon  money;"13  in 
"foreign  bills;"14  in  "paper  medium;"15  "in  East  India 
bonds,"16  in  United  States  bonds;17  in  Confederate  bonds 

'Graham  v.  Adams,  5  Ark.  261  (1843). 

*Dorranee  t>.  Stewart,  1  Yeates  349  (1794),  the  note  being  .made  in  Con- 
necticut and  intended  to  mean  lawful  money  of  Connecticut. 

3 Keith  v.  Jones,  9  Johns.  120  (1872).  See  N.  Y.  Statutes;  1  R.  L.  229;  1 
R.  S.  768. 

♦Bradley  v.  Lill,4  Biss.  C.  C.  473  (1867),  overruling  Lowe  v.  Bliss,  24  111.  168. 

5  Baker  v.  Todd,  6  Tex.  273;  Smith  v.  Falwell,  21  lb.  466  (1858),  distin- 
guishing such  notes  from  a  promise  to  pay  in  cash  notes.  But  in  Lawrence 
v.  Dougherty,  5  Yerg.  435  (1829)  a  note  for  $500  "  which  may  be  discharged 
in  merchantable  cotton  "  was  held  to  be  the  same  thing  as  a  note  payable 
in  cotton,  and,  therefore,  not  negotiable.  Notes  payable  "in  good  solvent 
cash  notes  "  are  said  to  constitute  a  ''  money  demand  "  on  failure  to  deliver 
the  notes,  Grant  v.  Burleson,  38  Tex.  214  (1873).  But  see,  contra,  Ward  v. 
Latimer,  2  Tex.  245  (1847). 

6  Williams  v.  Sims,  22  Ala.  512  (1853).  And  see,  to  like  effect,  Hopkins  v. 
Seymour,  10  Tex.  202  (1853). 

7Hasbrook  v.  Palmer,  2  McLean  10  (1839). 

^Meaning  Tennessee  bank  notes,  Taylor  v  Neblett.  4  Heisk.  491  (1871). 
But  see  Searcy  v.  Vance,  Mart.  &  Yerg.  225,  to  the  effect  that  such  expres- 
sion is  equivalent  to  money  and  makes  a  negotiable  note.  So,  as  to  "Arkan- 
sas money,"  Wilburn  v.  Greer,  6  Ark.  255  (1845). 

9That  is,  Mississippi  bank  notes,  Hopson  v.  Fountain,  5  Humph.  140  (1844). 

10Chevallier  v.  Buford,  1  Tex.  503  (1846). 

"Hawkins  v.  Watkins,  5  Ark.  481  (1844). 

12 Thompson  v.  Sloan,  23  Wend.  71.  This  is  the  case  also  of  a  note  made 
in  Canada  and  payable  "  in  Canada  bills,"  although  provincial  notes  were 
authorized  and  made  a  legal  tender  by  statute  of  29  &  30  Vict.  c.  10,  Gray 
v.  Worden,  29  Q.  B.  535  (Up.  Can.  1870). 

"Gordon  v.  Parker,  2  Sm.  &  M.  495  (1844). 

14  Meaning  bills  of  country  banks,  Jones  v.  Fales,  4  Mass.  245  (1808). 

15Lange  v.  Kohne,  1  McCord  115  (1821). 

16Byles94;  Bull  N.  P.  272. 

"Eastern  v.  Hvde,  13  Minn.  90  (1868) ;  'Blouin  v.  Liquidators  of  Hart,  30 
La.  An.  714  (1878). 


PAYABLE    IN    SPECIE.  121 

(illegal  and  void).1  It  is  said,  however,  that  a  purchase- 
money  note  for  land  payable  "  in  Mississippi  certificates  of 
indebtedness,"  is  so  far  a  note  for  money  as  to  be  secured  by 
a  vendor's  lien.2 

A  note  payable  in  money  wiR  not  lose  its  negotiability  by 
reason  of  an  option  contained  in  it  for  payment  in  United 
States  bonds.3  But  a  note  payable  "  in  bank  stock  or  lawful 
money  of  the  United  States  "  is  not  a  negotiable  note  for  the 
payment  of  money.4  Where  the  means  of  payment  provided 
for  are  not  money,  it  follows  that  the  damages  recoverable 
are  not  the  amount  named  but  the  value  of  the  medium 
named  in  money.5 

It  is  believed  that  the  rule  requiring  commercial  paper  to 
be  payable  in  money  only,  except  so  far  as  it  has  been 
changed  by  a  few  statutes  in  the  United  States,  is  a  universal 
one.  It  is  implied  in  the  definitions  and  other  provisions  of 
nearly  every  foreign  Commercial  Code,  and  assumed  without 
discussion  by  French  and  German  writers  on  commercial 
law.6 

§  97.  Payable  "In  Specie"— " Gold"— U.  S.  Legal  Tender.— 
A  bill  of  exchange  or  promissory  note  payable  "  in  gold  " 
or  "  in  specie  "  is  for  the  payment  of  money  and  not  for  bull- 
ion or  merchandise.7     And,  therefore,  as  such,  its  negotiabil- 

'Prigeon  v.  Smith,  31  Tex.  171  (1868). 

'Deacon  v.  Taylor,  53  Miss.  697  (1876).  On  the  other  hand,  a  promise  in 
writing  to  pay  "  county  scrip  "  has  been  held  to  be  an  agreement  and  not  a 
note,  Jones  v.  State,  40  Ark.  344  (18S3). 

3Dinsmore  v.  Duncan,  57  N.  Y.  573  (1874) ;  but  such  quality  is  lost  by  the 
holder's  indorsing  his  option  to  take  bonds  in  payment,  76. 

Alexander  v.  Oaks,  2  Dev.  &  Bat.  513  (1S37).  See  Act  of  1786,  1  R.  S.  c. 
13  \  3.  So,  a  note  containing  an  option  to  pay  in  money  or  property  is  not 
negotiable,  Taylor  v.  Tompkins,  1  Tex.  App.  1050  (1881).  In  such  notes 
the  election  belongs  to  the  debtor  and  the  creditor  can  only  demand  money 
on  the  debtor's  failure  to  exercise  his  option,  Nipp  v.  Dickev,  81  End.  214 
(1881). 

5Hopson  v.  Fountain,  5  Humph.  140  (1844);  Chevallier  v.  Buford,  1  Tex. 
503  (1846) ;  Gordon  v.  Parker,  2  Sm.  &  M.  495  (1844). 

•In  Italy  notes  may  be  made  to  order  for  payment  in  produce,  subject  to 
the  same  regulations  as  notes  payable  in  money  (1865  Code  Com.  Arts.  27."), 
276).  But  such  notes  or  bills  must  lie  payable  at  a  time  fixed  (Art.  278). 
In  Mexico  (1854  Code  Com.  Art.  223)  Wilis  of  exchange  must  be  for  the  pay- 
ment of  an  amount  particularly  specified  " in  actual  and  current  money." 

'Chrysler  v.  Renois,  -VA  X.  Y.  209  (1870),  on  a  bill  of  exchange  payable 
"in  gold  dollars;"  Wood  i>.  Bullen,  6  Allen  516  (1863). 


122  FORM THE    CONTRACT    FOR    PAYMENT. 

ity  lias  j)assed  unquestioned.  In  like  manner  a  note  payable 
"in  specie  or  its  equivalent"  is  a  note  for  money,  on  which 
an  action  of  debt,  not  covenant,  will  lie.1  This  view  is,  how- 
ever, opposed  to  that  of  an  earlier  case  in  Texas,  where  a 
.  note  payable  "  in  lawful  funds  of  the  United  States  or  its 
equivalent "  was  held  to  be  a  contract  for  coin,  non-negotia- 
ble and  only  assign-able  in  equity.2 

§  98.  Legal  Tender  Act  and  Decisions. — The  United  States 
Legal  Tender  Act  of  1862  provides  that  the  United  States 
notes  issued  under  that  act  "  shall  be  lawful  money  and  a 
legal  tender  in  payment  of  all  debts,  public  and  private, 
within  the  United  States,  except  for  duties  on  imports  and 
interest  on  the  public  debt."3  This  act  led  to  many  conflict- 
ing decisions,  the  principal  of  which  are  noted  in  the  follow- 
ing sections.  In  1865  it  was  held  to  be  unconstitutional  by 
the  Court  of  Errors  of  the  State  of  Kentucky,  so  far  as  it 
affected  contracts  made  prior  to  the  passage  of  the  act.4 
This  decision  was  affirmed  by  the  Supreme  Court  of  the 
United  States,  in  December,  1869,  and  judgment  to  that 
effect  announced  by  the  court  in  the  following  February.5 

^hyne  v.  Wacaser,  63  N.  C.  36  (1868).  And  it  has  been  held  that  a  note 
payable  "in  gold  or  its  equivalent  in  notes,"  may  be  satisfied  by  payment 
of  the  sum  named  in  U.  S.  legal  tender  notes,  Killough  v.  Alford,  32  Tex. 
451  (1S70),  and  that  in  such  case  judgment  should  be  rendered  for  gold  or 
its  equivalent  in  U.  S.  legal  tender  notes  and  that  a  judgment  for  the  amount 
in  gold  is  erroneous,  Wells  v.  Van  Sicle,  6  Nev.  45  (1870).  But  see  Holt  v. 
Given,  43  Ala.  612  (1869),  where  it  was  held  that  payment  of  such  note  could 
only  be  made  in  legal  tender  notes  of  equivalent  value. 

2Ogden  v.  Slade,  1  Tex.  13  (1846),  Lipscomb,  J.,  saying:  "By  equivalent 
the  parties  must  have  meant  such  paper  currency  as  passed  at  par  with 
gold.  This  alternative  of  an  equivalent  would  perhaps  restrain  the  negotia- 
bility and  destroy  the  mercantile  character  of  the  paper  so  that  it  would 
not  pass  by  delivery  and  the  holder  might  not  maintain  a  suit  in  his  own 
name  on  it  at  common  law." 

3U.  S.  Rev.  Stats.  §  3588.  This  was  afterward  extended  to  the  Green- 
back issues  of  1863,  1864  and  1872,  the  latter,  however,  not  extending  to  the 
redemption  of  bank  notes  "calculated  and  intended  to  circulate  as  money," 
R.  S.  I  3590. 

*Griswold  v.  Hepburn,  2  Duv.  20  (1865).  This  case  was  upon  a  promis- 
sory note  for  "eleven  thousand  dollars"  made  in  1860  and  falling  due  Fcl>- 
ruary  20th,  1862,  five  days  before  the  passage  of  the  Legal  Tender  Act.  The 
judgment  was  for  recovery  in  gold  or  its  equivalent  value. 

5Hepburn  v.  Griswold,  8  Wall.  603.  As  to  the  argument  urging  the  neces- 
sity of  the  Legal  Tender  Act  as  incident  to  the  power  to  make  war,  Chief 
Justice  Chase  says  (p.  625):  "We -are  obliged  to  conclude  that  an  act 
making  mere  promises  to  pay  dollars  a  legal   tender  in   payment  of  debt* 


LEGAL    TENDER    ACT   AND    DECISIONS.  123 

Fifteen  months  later  it  was  expressly  overruled  by  the  same 
court,  and  the  Legal  Tender  Act  has  since  that  time  been 
generally  held  by  the  courts  to  be  applicable  to  contracts 
made  before  its  passage.1 

previously  contracted  is  not  a  means  appropriate,  plainly  adapted,  really 
calculated  to  carry  into  effect  any  express  power  vested  in  Congress,  that 
such  an  act  is  inconsistent  with  the  spirit  of  the  constitution,  and  that  it  is 
prohibited  by  the  constitution."  Mr.  Justice  Miller,  dissenting  from  this, 
s;\vs  (p.  639) :  ''  If  the  act  to  be  considered  is  in  any  sense  essential  to  the 
execution  of  an  acknowledged  power,  the  degree  of  (hat  necessity  is  for  the 
legislature  and  not  for  the  court  to  determine."  The  judgment  was  ren- 
dered by  a  vote  of  five  judges  for  affirmance,  (Chase.  C.  J.,  Nelson,  Clifford, 
Grier  and  Field,  JJ.,)  three  judges  dissenting,  (Miller,  Swayne  and  Davis, 
JJ.) 

1  Legal  Tender  Cases,  12  Wall.  457  (May,  1871).  This  case  overruled, 
Hepburn  v.  Griswold,  by  a  similar  vote  of  five  judges,  (Miller,  Swayne, 
Davis,  Strong  and  Bradley,  JJ,)  four  judges  dissenting,  (Chase,  C  J.,  and 
Nelson,  Clifford  and  Field,  JJ.)  The  personnel  of  the  court  had  been 
changed  in  the  meantime  by  the  resignation  of  Mr.  Justice  Grier  and  the 
appointment  of  Messrs.  Justices  Strong  and  Bradley.  For  a  protest  against 
this  extraordinary  action  of  the  court  and  an  account  of  the  circumstances 
by  which  it  was  brought  about,  the  reader  is  referred  to  the  dissenting 
opinions  of  Chief  Justice  Chase  (p.  572)  and  Mr.  Justice  Clifford  (p.  604). 
Mr.  Justice  Bradley,  in  his  opinion  (p.  567),  says:  "I  do  not  say  that  it  is 
a  war  power  or  that  it  is  only  to  be  called  into  exercise  in  time  of  war." 
And  Mr.  Justice  Strong  says  of  the  obligation  of  the  contract  (p.  548) :  "  It 
was  not  a  duty  to  pay  gold  or  silver  or  the  kind  of  money  recognized  by  law 
at  the  time  when  the  contract  was  made,  nor  was  it  a  duty  to  pay  money 
of  equal  intrinsic  value  in  the  market.  The  expectation  of  the  creditor  and 
the  anticipation  of  the  debtor  may  have  been  that  the  contract  would  be 
discharged  by  the  payment  of  coined  metals,  but  neither  the  expectation 
of  one  party  to  the  contract  respecting  its  fruits,  nor  the  anticipation  of  the 
other  constitutes  its  obligation.  *  *  *  The  obligation  of  a  contract  to  pay 
money  is  to  pay  that  which  the  law  shall  recognize  as  money  when  the  pay- 
ment is  to  be  made."     (In  the  Hepburn  case  that  would  have  been  coin.) 

This  principle  has  since  been  extended  by  the  U.  S.  Supreme  Court, 
in  Juilliard  v.  Greenman,  110  U.  S.  449  (1884),  to  greenbacks  re-issued  under 
the  Act  of  1878  (Field,  J.,  dissenting).  The  opinion  of  the  court,  read  by 
Mr.  Justice  Gray,  puts  the  Act  upon  a  peace  footing  as  follows  :  "  Congress, 
as  a  legislature  of  a  sovereign  nation,  being  expressly  empowered  by  the 
constitution  'to  lay  and  collect  taxes,  to  pay  the  debts  and  provide  fir  the 
common  defense  and  general  welfare  of  the  United  States,'  and  '  to  borrow 
money  on  the  credit  of  the  United  States,'  and  '  to  coin  money  and  regulate 
the  value  thereof  and  of  foreign  coin;'  and  being  clearly  authorized  and  as 
incidental  to  the  exercise  of  those  great  powers  to  emit  bills  of  credit,  to 
charter  national  banks,  and  to  provide  a  national  currency  for  the  whole 
people  in  the  form  of  coin,  treasury  notes  and  national  bank  bills  ;  and  the 
power  to  make  the  notes  of  the  government  a  legal  tender  in  payment  of 
private  debts  being  one  of  the  powers  belonging  to  sovereignty  in  other  civil- 
ized nations  and  not  expressly  withheld  from  congress  by  the  constitution  : 
we  are  irresistibly  impelled  to  the  conclusion  that  the  impressing  upon  the 
treasury  notes  of  the  United  States  the  quality  of  being  a  legal  tender  in 
payment  of  private  debts  is  an  appropriate  means,  conducive  and  plainly 
adopted  to  the  execution  of  the  undoubted  powers  of  congress,  consistent 
with  the  letter  and  spirit  of  the  constitution,  and  therefore,  within  the  mean- 
ing of  that  instrument,  necessary  and  proper  for  carrying  into  execution 
the  powers  vested  by  this  constitution  in  the  government  of  the  United 
States." 


124  FORM THE    CONTRACT    FOR    PAYMENT. 

And  it  has  been  held  that  a  note  payable  "in  gold"  may 
be  satisfied  under  the  Legal  Tender  Act  by  payment  in  legal 
tender  notes.1  And,  where  made  in  1858  "to  be  paid  in  gold 
or  silver,"  judgment  for  the  amount  in  "dollars"  was  held  to 
be  correct.2  Indeed,  the  addition  of  the  words  ''in  gold" 
was  held  to  be  an  immaterial  alteration  in  1860,  when  there 
was  no  other  means  of  payment.3  So,  too,  United  States 
legal  tenders  have  been  held  sufficient  payment  of  a  note 
"payable  in  specie."4  But  in  a  later  case  in  Vermont  it  was 
held  that  the  holder  was  entitled  to  an  amount  of  currency 
equivalent  in  value  to  the  amount  in  specie  at  the  time  of 
rendering  judgment.5  And  in  the  U.  S.  Supreme  Court  it 
was  held  at  the  same  term  at  which  the  Legal  Tender  cases 
were  decided,  that  a  note  "payable  in  specie"  could  only  be 
satisfied  by  payment  in  coined  dollars.6  And  this  may  now 
be  regarded  as  the  rule  regarding  bills,  notes  and  other  con- 
tracts payable  either  "iu  gold"  or  "in  specie."7 

The  rule  is  still  clearer  that  judgment  must  be  for  coin  on 
all  notes  and  bills  payable  "in  coin  ;"8  or  "in  gold  and  silver 

'Buchegger  v.  Schultz,  13  Mich.  420  (1865);  Jump  v.  Peltier,  18  La.  An. 
193  (1866);  Riley  v.  Sharp,  1  Bush  348  (1866);  Gist  v.  Alexander,  12  Rich. 
50  (1867).  See,  too,  Shollenherger  v.  Brinton,  52  Penna.  St.  9  (1866),  virtu- 
ally overruled  in  McCalla  v.  Ely,  64  lb.  254  (1870).  But  it  was  held  in  Glass 
v.  Pullen,  6  Bush  346  (1869),  that  a  judgment  on  such  note  should  be  for 
gold  or  its  equivalent  in  legal  tender  notes,  and  that  such  a  note  given  for  a 
loan  of  equal  amount  in  legal  tender  notes,  was  a  usurious  contract;  and  in 
Hittson  v.  Davenport,  4  Col.  169  (1878),  that  a  payment  in  currency  on  such 
note  should  only  be  credited  to  the  amount  of  its  value  in  gold,  the  note 
being  for  so  many  "  dollars  gold     *    *    *    in  gold." 

2  Johnson  v.  Vickers,  1  Duv.  266  (1864). 

3 Bridges  v.  Winters,  42  Miss.  135  (1868). 

4  Wood  v.  Bulien,  6  Allen  516  (1863).  So,  Flournoy  v.  Healy,  31  Tex.  590 
(1869),  where  the  note  was  for  a  specified  sum  "  in  specie  "  or  a  larger  sum 
"  in  U.  S.  currency  "  and  the  judgment  was  rendered  for  the  smaller  sum. 

5Townsend  v.  Jennison,  44- Vt,  315  (1872).  But  see  Flournoy  v.  Healy,  31 
Tex.  590  (1869). 

6Trebilcock  v.  Wilson,  12  Wall.  687  (1871),  Miller  and  Bradley,  JJ.,  dis- 
senting. 

"And  where  a  note  is  payable  "  in  gold  or  its  equivalent  in  currency,"  the 
recovery  will  be  an  amount  in  currency  equal  in  value  to  the  amount  named 
in  gold,  Dunn  v.  Barnes,  73  N.  C.  273  (1875).  And  as  to  the  enforcement  of 
such  contracts,  see  Burnett  v.  Stearns,  33  Cal.  468  (1867) ;  Bridges  v.  Rev- 
nolds,  40  Tex.  204  (1874). 

8Poett  v.  Stearns,  31  Cal.  78  (1866);  Phillips  v.  Dugan,  21  Ohio  St.  466 
(1871);  Smith   v.  Wood,  37  Tex.  616  (1872);   Bowen  v.  Darby,  14  Fla.  202 


PAYABLE  IN  CURRENT  FUNDS.  125 

coin  ;M1  or  in  "gold  dollars  ;"2  or  "lawful  silver  money  ;"3  or 
in  "English  golden  guineas  and  other  gold  and  silver  at  the 
present  established  weight  and  rate;"4  or  "in  gold  coin  of 
the  United  States  of  the  present  standard  of  weight  and 
fineness,  notwithstanding  any  law  which  now  may  or  here- 
after shall  make  anything  else  a  tender  in  payment  of  debts."5 

§  99.  Payable  in  "Current  Funds" — "Currency." — It  ap- 
pears to  be  established  in  some  States  that  a  bill  or  note 
payable  in  "current  funds"  is  payable  in  money  and  there- 
fore negotiable.6  So,  too,  a  note  payable  "in  current  funds 
of  the  State  of  Ohio;"7  or  "in  funds  current  in  the  City  of 
New  York;"8  or  a  certificate  of  deposit  for  $100  "in  funds 

*  *  *  to  be  paid  in  like  funds."9  In  other  States  the 
contrary  has  been  held  as  to  instruments  payable:  "in  cur- 
rent funds;"10  "in  current  funds  at  Pittsburgh;"11  "in  New 
York  funds  or  their  equivalent."12 

The  same  difference  prevails  in  the  decisions  as  to  bills 

(1872) ;  Churchman  v.  Martin,  54  Ind.  380  (1876).  Although  it  was  held 
that  judgment  on  such  a  note  should  be  for  "dollars,"  not  for  coin,  in  Pres- 
ton v.  Breedlove,  36  Tex.  96  (1871). 

^ronson  v.  Bodes,  7  Wall.  229  (1868),  approved  in  Trebilcock  v.  Wilson, 
12  lb.  687  (1871),  Miller,  J.,  dissenting  in  both  cases.  So,  too,  if  payable  "  in 
gold  or  silver  coin,"  Smith  v.  McKinney.  22  Ohio  St.  200  (1871).  But  see, 
contra,  Hastings  v.  Johnson,  2  Nev.  190  (1866);  Glover  v.  Bobbins,  49  Ala. 
220  (1873). 

2Lafitte  v.  Bivera,  23  La.  An.  32  (1871).  This  decision  relied  on  the  au- 
thority of  Hepburn  v.  Griswold,  8  Wall.  603,  since  overruled  in  the  Legal 
Tender  cases,  12  Wall.  457. 

sMcCalla  v.  El\\  64  Penna.  St.  254  (1870),  overruling  Shollenberger  v. 
Brinton,  52  lb.  9  (1866). 

4 Butler  v.  Horwitz,  7  Wall.  258  (1868). 

6Dutton  v.  Pailaret,  52  Penna.  St.  109  (1866). 

sAmerican  Emigrant  Co.  v.  Clark,  47  Iowa  671  (1878).  To  the  same  effect 
see  Wood  v.  Price,  46  111.  435  (1868) ;  Galena  Ins.  Co.  v.  Kupfer,  28  lb.  332 
(1862) ;  Kupfer  v.  Marc,  lb  388,  affirmed  as  Marc  v.  Kupfer,  34  lb.  86  (1864) ; 
Williams  v.  Amis,  30  Tex.  37  (1S67).  See,  too,  Blood  v.  Northrup,  1  Kans. 
28  (1862). 

'White  v.  Richmond,  16  Ohio  5  (1847). 

8Lacy  v.  Holbrook,  4  Ala.  88  (1842). 

•Swift  v.  Whitney,  20  111.  144  (1858). 

10Platt  v.  Sank  Co.  Bank,  17  Wis.  222  (1863);  Lindsey  v.  McClelland,  18 
lb.  505  (1864);  Johnson  v.  Henderson,  76  N.  C.  227  (1877);  Haddock  v. 
Woods,  46  Iowa  433  (1877);  National  State  Bank  v.  Ringel,  51  Ind.  393 
(1875) ;  Cornwell  v.  Pumphrey,  9  Ind.  135  (1857  . 

11  Wright  v.  Hart,  44  Penna.  St.  454  (1863). 

"Hasbrook  v.  Palmer,  2  McLean  10  (1839). 


126  FORM THE    CONTRACT    FOR    PAYMENT. 

and  notes  payable  "  in  currency."  Such  instruments  are 
held  to  be  negotiable  in  many  States.1  So,  too,  a  note  paya- 
ble in  "greenback  currency;"2  or  in  "paper  currency" 
(meaning  legal  tender  notes);3  or  "in  currency  at  its  specie 
value;"4  or  "in  the  common  currency  of  the  country,  that 
which  will  pay  taxes  ;"5  or  "  in  currency  at  the  present  rates, 
148  to  100,  or  in  whatever  good  currency  may  be  used  at  the 
time  the  note  falls  due,"  such  note  being  payable  in  U.  S. 
currency,  although  of  improved  value.6  In  North  Carolina, 
however,  "  undepreciated  currency  "  was  held  not  to  mean 
coin  but  "ordinary  commercial  and  business  currency."7 
The  following  expressions  also  have  been  held  to  mean 
cash  or  money,  the  instrument  payable  in  such  manner  being- 
negotiable,  viz. :  "New  York  State  currency;"8  "currency 
of  the  State  of  Mississippi  ;"9  "Kentucky  currency;"10  "cur- 

'Howe  v.  Hartness,  11  Ohio  St.  449  (1860) ;  Fry  v.  Dudlev,  20  La.  An.  368 
(1868) ;  Butler  v.  Paine,  8  Minn.  324  (1868) ;  Klauber  v.  BiggerstafF,  47  Wis. 
551:  S.  C,  9  Cent.  L.  J.  488  (collecting  and  reviewing  a  great  number  of 
American  cases);  Phelps  v.  Town,  14  Mich.  374  (1866),  Christiancy,  J., 
defining  currency  to  be  "money  current  by  law  or  paper  equivalent  in 
value  circulating  in  the  community  at  par."  In  Swift  v.  Whitney,  20  111. 
144,  Walker,  J.,  says:  "By  the  term  currency  is  understood  bank  bills  or 
other  paper  money  issued  by  authority,  which  pass  as  and  for  coin.  *  *  * 
It  would  seem  that  current  bills  or  currency  are  of  the  value  of  cash  and 
exclude  the  idea  of  depreciated  paper  money."  See,  too,  the  remarks  of 
Field,  J.,  in  Trebilcock  v.  Wilson,  12  Wall.  695;  also  Taup  v.  Drew,  10  How. 
218. 

2 Burton  v.  Brooks,  25  Ark.  215  (1868),  national  bank  notes  not  being 
included  in  such  designation. 

3  Frank  v.  Wessels,  64  N.  Y.  155  (1876). 

4 Caldwell  v.  Craig,  22  Gratt.  340  (1872),  such  note  being  held  to  be  paya- 
ble in  specie. 

5  Johnson  v.  Miller,  76  N.  C.  439  (1877),  U.  S.  legal  tender  notes  being 
.meant,  at  least  -prima  facie. 

6 Echols  v.  Grattan,  42  Ga.  547  (1871). 

'Blackburn  v.  Brooks,  65  N.  C.  413  (1871). 

8Ehle  v.  Chittenango  Bank,  24  N.  Y.  548  (1862). 

'Mitchell  v.  Hewitt,  5  Sm.  &  M.  361  (1845),  i.  e.  not  bank  notes  but  specie. 

10Lampton  v.  Haggard,  3  T.  B.  Mon.  149  (1826).  See,  too,  as  to  the  meaning 
of  "  Illinois  currency,"  Marine  Bank  v.  Berney,  28  111.  90  (1862) ;  Marine  Bank 
v.  Rushmore,  lb.  463  (1862);  Chicago  Ins.  Co.  v.  Keiron,  27  lb.  501  (1862). 
approving  the  definition  of  "  currency "  in  Wharton's  Law  Lex.  236  as 
"  bank  notes  or  other  paper  money  issued  by  authority,  and  which  are  con- 
tinually passing  as  and  for  coin."  And  in  Springfield  Marine,  &c,  Ins.  Co.  v. 
Tiucher,  30  111.  399  (1863),  it  was  held  that  a  certificate  of  deposit  for  "  cur- 
rency "  since  depreciated  must  be  paid  in  bills  passing  as  coin. 


PAYABLE    IN    BANK    NOTES.  127 

rency  of  Missouri;"1  "currency  of  Zanesville  ;"2  "Canada 
currency  ;"3  "current  money  of  the  State  of  Alabama."4 

On  the  other  hand  the  following  have  been  held  not  to  be 
negotiable,  viz.:  "  in  currency  ;"5  "  common  currency  of  Ar- 
kansas" (or  Alabama)  ;6  "in  the  currency  of  Kentucky;"7 
"  in  Pennsylvania  or  New  York  paper  currency  to  be  cur- 
rent in  the  State  of  Pennsylvania  or  the  State  of  New 
York;"8  "current  notes  of  the  State  of  North  Carolina;"9 
"in  currency  of  the  country,  but  not  in  Confederate  notes."10 

§  100.  Payable  in  Bank  Notes. — It  is  generally  agreed  that 
paper  payable  in  bank  notes  or  bills  loses  its  negotiable 
character.  This  is  so,  if  it  is  payable  "in  bank  notes;"11  or 
"in  current  bank  notes;"1,2  or  "in  current  bills;"13  or  "in 
cash  or  Bank  of  England  notes  ;"14  or  "  in  office  notes  of  the 

^ockrill  v.  Kirkpatrick,  9  Mo.  688  (1846).  And  it  was  held  in  this  case 
that  parol  evidence  was  inadmissible  to  show  that  depreciated  notes  were 
intended. 

"Dugan  v.  Campbell,  1  Ohio  115  (1823). 

sBlack  v.  Ward,  27  Mich.  191  (1873). 

*  Carter  v.  Penn,  4  Ala.  140  (1842),  meaning  coin,  not  bank  notes. 

5  Bank  of  Mobile  v.  Brown,  42  Ala.  108;  Huse  v.  Hamblin,  29  Iowa  501 
(1870);  Blndskopf  v.  Barrett,  11  lb.  172  (I860);  Ford  v.  Mitchell,  15  Wis. 
334;  Farwell  v.  Kenneth,  7  Mo.  595  (1842). 

6 Bank  notes  beins;  intended,  Dillard  v.  Evans,  4  Ark.  185  (1842) ;  Carlisle 
v.  Davis,  7  Ala.  42  (1S44). 

'Chambers  v.  George,  5  Litt.  335,  bank  notes  being  the  currency  intended. 

8Leiber  v.  Goodrich,  5  Cow.  136  (1825). 

9  Warren  v.  Brown,  64  N.  C.  381  (1870). 

"Coffin  v.  Hill,  1  Heisk.  385  (1870).  This  was  held  to  be  payable  in  cur- 
rent bank  notes  current  at  its  maturity,  although  depreciated,  and  a  verdict 
was  had  for  "  dollars." 

"State  v.  Corpening,  10  Ired.  58  (1849) ;  Jones  v.  Fales,  4  Mass.  245  (1808)  ; 
Childress  v.  Stuart,  Peck  276  (Tenn.  1823).  So  in  Gray  v.  Donahoe,  4  Watts 
400  (1835),  Sergeant,  J.,  savin-:  "No  principle  is  better  established  nor 
more  necessary  to  be  maintained  than  that  bank  notes  are  not  money  in 
the  legal  sense  of  the  word.  *  *  *  Bank  notes  are  merely  promissory 
notes  For  the  payment  of  money." 

"Gamble  v.  Hatton,  Peck  130  (Tenn.  1823);  Kirkpatrick  v.  McCullough, 

3  Humph.  171  (1842) ;  Simpson  v.  Moulden,  3  Coldw.  429  (1866) ;  McDowell 
v.  Keller,  4  lb.  258  (1867);  Little  v.  Phenix  Bank,  2  Hill  425  (1842); 
affirmed,  7  lb.  359;  Pardee  v.  Fish,  00  N.  Y.  265  (1875);  Gray  v.  Donahoe, 

4  Watts  400  (1S35)  ;  Jackson   v.  Waddill,  1  Stew.  (Ala.)  579;    Young  v.  Scott, 

5  Ala.  475  (1843).  Damages  in  such  case  being  the  value  of  the  bank  notes 
at  the  maturity  of  the  bill,  Moore  y.  Gooch,  6  Heisk.  104  (1871);  McDowell 
l>.  Keller.  4  Coldw.  258  (1867);  Hopson  v.  Fountain,  5  Humph.  140  (1844). 
But,  contra,  Fleming  v.  Nail,  1  Tex.  246  (1846). 

"Collins  v.  Lincoln,  11  Vt.  268  (1839). 

"Byles  94  ;    Ex  port'  Imeon,  2  Rose  22");   but  see  3  &  4  Will.  4  c.  98  \  6. 


128  FORM THE    CONTRACT    FOR    PAYMENT. 

bank  "  (payee)  ;l  or  "  in  current  bank  notes  receivable  at  the 
counter  of  said  bank;"2  or  "in  notes  of  the  United  States 
Bank  or  either  of  the  Virginia  banks  ;"3  or  in  "  North  Caro- 
lina bank  notes  ;"4  or  "  in  good  North  Carolina  bank  bills  ;"6 
or  in  "  bank  notes  of  the  chartered  banks  of  Pennsylvania  ;"6 
or  in  "current  bank  notes  of  Tennessee;"7  or  "in  Tennes- 
see money,"  meaning  Tennessee  bank  notes;8  or  in  "current 
Mississippi  bank  money,"  meaning  Mississippi  bank  notes;9 
or  "in  current  notes  of  either  of  the  banks  of  N.  ;"10  or  in 
"Shamokin  bank  notes."11  But  in  early  cases  in  Ohio  th-e 
contrary  has  been  held  as  to  bills  payable  "  in  current  Ohio 
bank  notes;"12  or  "in  current  bank  notes  of  Cincinnati."13 
So,  too,  in  an  early  case  in  New  York  of  a  note  payable  "  in 
bank  notes  current  in  the  city  of  New  York  ;"u  and  in  Mis- 
sissippi of  a  note  payable  "  in  notes  of  the  banks  of  the  State 
of  Mississippi  payable  and  negotiable  in  any  bank  in  the 
State  of  Mississippi."15 

§  101.  Payable  in  Merchandise  or  Work. — Except  where 
it  is  otherwise  provided  by  statute,  as  already  noted,  instru- 
ments for  payment  in  goods  are  not  bills  of  exchange  or 

'Irvine  v.  Lowry,  14  Pet.  293  (1840). 

2  Fry  v.  Rousseau,  3  McLean  106  (1842). 

3Beirne  v.  Dunlap,  8  Leigh  514  (disapproving  Crawford  v.  Daigh,  2  Va. 
Cas.  521 ;  Campbell  v.  Weister,  1  Litt.  30;  January  v.  Henry,  3  T.  B.  Mon.  8; 
Noe  v.  Preston,  5  J.  J.  Marsh.  57).  And  it  has  been  held  that  proof  of  a  note 
"  to  be  paid  in  notes  on  the  Bank  of  Kentucky  or  the  Branch  Bank  at  L." 
will  not  sustain  a  declaration  on  a  note  payable  in  money,  Osborne  v.  Ful- 
ton, 1  Black  f.  231. 

4Kirkpalrick  v.  McCullough,  3  Humph.  171  (1842),  overruling  Deberry  v. 
Darnell,  5  Yerg.  451  (1830). 

5Patton  v.  Hunt,  64  N.  C.  163  (1870). 

6McCormick  v.  Trotter,  10  S.  &  R.  9*  (1823). 

7Whiteman  v.  Childress,  6  Humph.  303  (1845). 

8  Taylor  v.  Neblett,  4  Heisk.  491  (1871). 

9Hopson  v.  Fountain,  5  Humph.  140  (1844). 

10Bonnell  v.  Covington,  7  How.  322  (Miss.  1843). 

"Shamokin  Bank  v.  Street,  16  Ohio  St.  1  (1864). 

12Swetland  v.  Creigh,  15  Ohio  118  (1846). 

"Morris  v.  Edwards,  1  Ohio  205  (1823). 

"Judah  v.  Harris,  19  Johns.  144  (1821),  the  court  taking  notice  that  such 
notes  are  of  cash  value  throughout  the  State. 

"Besancon  v.  Shirley,  9  Sm.  &  M.  457  (1848),  under  the  statute,  H.  &  H. 
Dig.  373  I  12. 


PAYABLE    IN    MERCHANDISE    OK    WORK.  129 

promissory  notes,  although  in  form  negotiable  in  all  other 
respects.1  In  like  manner,  an  order  for  the  delivery  of  cer- 
tain specified  drafts  is  not  a  bill  of  exchange.2  Neither  is 
an  instrument  payable  in  specific  goods  "or  cash"  nego- 
tiable;3 nor  one  payable  in  bank  stock  or  lawful  money  of 
the  United  States;4  or  for  the  delivery  of  goods  and  pay- 
ment of  money.6  But  in  some  States  by  force  of  the  statute 
negotiable  notes  and  bills  may  be  payable  in  merchandise.6 
And  in  such  State  a  note  payable  in  merchandise  imports  a 
consideration.7  And  even  in  New  York,  a  note  payable  in 
cash,  or  before  its  maturity  in  stock,  has  been  held  to  be 
negotiable.8  And  by  bankers'  usage  scrip  certificates  for  the 
delivery  of  stock  to  the  bearer  are  now  recognized  as  nego- 
tiable instruments.9 

A  memorandum  written  on  the  back  of  a  note,  "this  note 

'Matthews  v.  Houghton,  11  Me.  377  (1S34) ;  Carleton  v.  Brooks,  14  N.  H. 
149  (1843);  Jerome  v.  Whitney,  7  Johns.  321  (1811);  Thomas  v.  Rossa,  Tb. 
461;  Gushee  v.  Eddv,  11  Gray  502  (1858);  Sears  v.  Lawrence,  15  lb.  267 
(I860) ;  Farnum  v.  Virgin,  52  Me.  578  (1864) ;  Tibbets  v.  Gerrish,  25  N.  H.  41 
(1852)  :  Perry  v.  Smith.  22  Vt.  361  (1850) ;  Peay  v.  Pickett,  1  Nott  &  McC. 
254  (1818) ;  Griffith  v.  Hanks,  46  Tex.  217  (1876) ;  Bailey  v.  Simond,  6  N.  H. 
159  (1833) ;  Clark  v.  King,  2  Mass.  524  (1807)  ;  Wingo  v.  McDowell,  8  Rich. 
L.  446  (1832)  ;  Lawrence  v.  Doughertv,  5  Yerg.  435  (1829) ;  Looney  v. 
Pinckston,  1  Overton  384  (Tenn.  1809) ;  Gwinn  v.  Roberts,  3  Ark.  72  (1838) ; 
Covle  v.  Satterthwaite,  4T.  B.  Mon.  124  (1826) ;  Mav  v.  Lansdown,  6  J.J.  Marsh. 
165  (1831) ;  Brown  v.  Richardson,  20  N.  Y.  472  (1859) ;  Hyland  v.  Blodgett, 
it  Oregon  166(1881);  Auerbach  v.  Pritchett,  58  Ala.  451  (1877);  Scudder  v. 
Clarke,  1  Col.  192  (1870)  ;  Bradley  v.  Morris,  4  111.  1S2  (1841— overruled  in 
1862  by  Bilderback  v.  Burlingame,  27  111.  341).  And  an  order  for  delivery 
of  goods  on  condition  of  the  delivery  of  a  deed  is  not  negotiable,  Kings- 
bury «.  Wall,  68  111.  311. 

2Burch  v.  Newberry,  1  Barb.  648  (1847). 

■'Matthews  v.  Houghton,  supra.  Although  an  instrument  for  the  payment 
of  cash  in  four  months  or  goods  on  demand  has  been  held  to  be  negotiable, 
Hosstatter  v.  Wilson,  36  Barb.  307  (1S62). 

Alexander  v.  Oaks,  2  Dev.  &  Bat.  513  (1837). 

6  Martin  v.  Chauntry,  2  Stra.  1271. 

"Smith  v.  Giegrich,  36  Mo.  369  (1865);  Coui.cil  Bluffs  Iron  Works  v. 
Cuppy,  41  Iowa  104  (1875) ;  Rankin  v.  Sanders,  6  How.  (Miss.)  52;  Bilder- 
back y.  Burlingame,  27  111.  341  (1862),  overruling  Bradley  v.  Morris,  supra. 
Ami  in  Illinois  a  note  for  $40,  "which  may  be  discharged  in  good  sound 
corn  at  20  cents  per  bushel,"  is  negotiable,  Borah  v.  Curry,  12  111.  66  (1850). 
Likewise  a  receipt  for  hogs,  "  the  product  of  which  we  promise  to  pay,"  &c, 
Stewart  v.  Smith,  28  111.  396  (1862). 

'Rogers  v.  Maxwell,  4  Ind.  243  (1853). 

8  Hodges  v.  Shuler,  22  N.  Y.  114. 

•Rumhall  v.  Metropolitan  Bank,  L.  R.  2  Q.  B.  D.  194  (1877). 


130  FORM THE    CONTRACT    FOR    PAYMENT. 

to  be  paid  in  wheat,"  is  part  of  the  note  and  makes  it  a  note 
payable  in  merchandise.1  And  in  general  when  a  note  or 
bill  is  payable  in  property,  the  property  called  for  must  be 
tendered  or  paid.2  And  the  maker  must  hold  himself  ready 
to  deliver  the  goods.3  And  judgment  should  be  for  such 
property,  unless  the  note  has  become  a  money  demand.4 
And  this  is  said  to  be  the  case  in  Texas,  on  a  default.5  So, 
a.  note  payable  in  corn  "  estimated  at  $20."  is  satisfied  by 
payment  of  $20.6  So,  a  note  for  the  delivery  of  200  barrels 
of  oil  in  consideration  of  $400,  "reserving  the  right  to  pay 
25  cents  per  barrel  on  payment  of  the  $400  above  men- 
tioned," may  be  satisfied  at  the  maker's  election  by  payment 
of  $450.7  And  it  is  held  in  Iowa  that  a  note  payable  in 
goods  is  not  entitled  to  grace.8  In  like  manner,  a  note  pay- 
able in  labor  of  any  kind  is  in  general  not  negotiable.9  But 
it  is  said  that  a  tender  of  the  amount  named  in  money  is  a 
good  tender  of  payment  of  such  note  ;10  aud  that  after  default 

^olo  Mfg.  Co.  v.  Piirr,  8  Neb.  379  (1879).  So,  too,  a  contemporaneous 
writing,  Hill  v.  Huntress,  43  N.  H.  480  (1862) ;  or  other  contemporaneous 
agreement,  Vinger  Mfg.  Co.  v.  Haines,  36  Mich.  385  (1877) ;  Weeks  v.  Medler, 
20  Kans.  57  (1878).  But  a  memorandum  on  the  margin  of  a  note,  "this 
note  is  secured  by  real  estate  for  its  exclusive  payment,"  does  not  make  it 
payable  in  real  estate,  Branning  v.  Markham,  12  Allen  454  (1866).  So,  evi- 
dence of  a  memorandum  that  the  payee  "is  to  take  all  the  flour  that  he 
may  want  for  family  use  and  such  other  articles  as  he  may  need  previous 
to  the  day  of  payment,"  is  no  variance  from  a  declaration  on  a  note  as  pay- 
able in  money,  Owen  v.  Barnum,  7  III.  461  (1845).  But  it  would  be  a  variance 
to  prove  that  the  note  was  "  to  be  paid  in  notes  on  the  Bank  of  Kentucky 
or  the  Branch  Bank  at  Lawrenceburg,"  Osborne  v.  Fulton,  1  Blackf.  234. 

2State  v.  Shupe,  16  Iowa  36  (1864). 

sSmith  v.  Loomis,  7  Conn.  110  (1828);  Johnson  v.  Baird,  3  Blackf.  153 
(1832) ;  Bailey  v.  Simonds,  6  N.  H.  159  (1833).  See,  too,  Barnes  v.  Graham, 
4  Cow.  452  (1825). 

4  Ransom  v.  Stanberry,  22  Iowa  334  (1867). 

5 Short  v.  Abernethy,  42  Tex.  94  (1875) ;  Atterburv  v.  Biggerstaff,  36  Tex. 
177  (1871).  See,  however,  Brasher  v.  Davidson,  31* Tex.  190  (1868),  where 
the  damages  awarded  on  a  note  payable  in  cotton  were  the  highest  price  of 
the  cotton  between  the  maturity  of  the  note  and  the  trial. 

6Hise  v.  Foster,  17  Iowa  23  (1864). 

'Knight  v.  Conn.  River  Petroleum  Co.,  44  Vt.  472  (1872). 

"McCartney  v.  Smalley,  11  Iowa  85  (1860). 

9  Reynolds  v.  Richards,  14  Penna.  St.  206  (1850);  Quimby  v.  Merritt,  11 
Humph.  439  (1850).  And  see  Bothick  v.  Purdy,  3  Mo.  82  (1831),  where  it  is 
said  not  to  be  assignable.  So.  an  instrument  in  the  form  of  a  note  payable 
in  services  and  containing  an  agreement  on  the  payee's  part  is  not  a  prom- 
issory note,  McClellan  v.  Coffin.  93  Ind.  456  (1883). 

10 Ferguson  v.  Hogan,  25  Minn.  135  (1878). 


STERLING.  131 

in  payment,  it  becomes  a  money  demand  and  is  assignable  as 
such;1  or,  at  least,  that  this  is  the  case  where  the  maker 
after  the  maturity  of  the  note  had  an  opportunity  to  perform 
the  work  called  for  and  failed  to  make  a  tender  of  such  work.2 
Moreover,  where  a  note  is  payable  "in  wagon  work  on  or 
before"  a  certain  day,  the  work  to  be  done  may  be  selected 
before  maturity  by  the  payee,  at  maturity  by  the  maker.3 

§  102.  "Sterling" — "Dollars." — Under  the  general  rule 
that  the  place  of  payment  is  contemplated  in  construing  the 
terms  of  the  bill  or  note,  the  word  "  sterling  "  will  be  con- 
strued to  mean  sterling  where  payable*  If  drawn  in  Eng- 
land, "  sterling  "  means  English  currency.5 

So,  in  general,  the  term  "  dollars  "  in  the  United  States 
means  lawful  currency  of  the  United  States.6  But  if  made 
and  payable  during  the  war  in  the  seceded  States,  it  will  for 
like  reason  be  construed  to  be  payable  in  Confederate 
currency.7  And  in  such  case  parol  evidence  is  admissible  to 
show  that  Confederate  currency  was  intended;8  or  was  not 

»Schnier  v.  Fay,  12  Kans.  184  (1873). 

"Schnessler  v.  Watson,  37  Ala.  98  (1860). 

3  Johnson  v.  Seymour,  19  Ind.  24  (1862). 

4Byles  86;  Taylor  v.  Booth,  1  C.  &  P.  286. 

6Landsdowne  v.  Landsdowne,  2  Bligh  95 ;  Kearney  v.  King,  2  B.  &  Aid.  301. 

6Bank  v.  Supervisors,  7  Wall.  26  (1868) ;  Thorington  v.  Smith,  8  lb.  1 
(1868).  So,  Cook  v.  Lills,  13  Otto  792  (1880),  where  the  note  was  executed 
in  the  Confederate  States,  but  there  was  no  evidence  of  an  understanding 
for  payment  in  "Confederate  dollars." 

'Donley  v.  Tindall,  32  Tex.  43  (1869);  Confederate  Note  Case,  19  Wall. 
548  (1873). 

These  cases  are  apparently  opposed  to  some  earlier  cases,  which  refuse 
the  admission  of  parol  evidence  to  show  that,  by  "dollars"  was  intended 
"Commonwealth  Paper,"  Baughv.  Ramsey,  4  T.  B.  Mon.  155  (1826) ;  or  hank 
notes,  Noe  v.  Hodges,  3  Humph.  162  (1842) ;  Pack  v.  Thomas,  13  Sm.  &  M.  ' 
11  (1849) ;  or  depreciated  money,  McMinn  v.  Owen,  2  Dall.  173  (1792).  And 
any  presumption  that  Confederate  currency  was  intended,  is  rebutted  by 
the  expression  "current  funds  at  the  time  the  note  falls  due,"  Hilliard  v. 
Moore,  65  N.  C.  540  (1871). 

8Thorington  v.  Smith,  8  Wall.  1  (1868);  Donley  v.  Tindall,  32  Tex.  43 
(1869) ;  Carmichael  v.  White,  11  Heisk.  262  (1872) ;  Lobdell's  Adrnr.  v.  Fow- 
ler, 33  Tex.  346  (1870);  Miller  v.  Lacy,  //;.  351,  although  in  this  last  case 
"  dollars  "  are  said  to  mean  prima  facie  United  States  currency.  And  to  the 
same  effect  see  Cook  v.  Lills,  13  Otto  792  (1880).  But  to  the  e'ffect  that  such 
evidence  is  inadmissible  see  Austin  v.  Kinsman,  13  Rich.  Eq.  259  (1867); 
Leslie  v.  Langham,  40  Ala.  524;  Roane  v.  Green,  24  Ark.  210  (1866).  And 
an  agreement  to  receive  Confederate  currency  in  payment,  if  without  con- 
sideration and  upon  an  u*  fulfil  led  condition,  constitutes  no  defense  to  a 
note,  Johnston  v.  Josev,  34  Tex.  533  (1870). 


132  FOKM THE    CONTRACT    FOR    PAYMENT. 

intended.1  But  it  is  not  admissible  to  prove  by  parol  that  a 
certificate  of  deposit  for  so  many  "dollars"  meant  the  depreci- 
ated bank  notes  or  other  currency  in  which  the  deposit  had 
been  made  ;2  or  a  currency  used  in  the  deposit  and  since  then 
depreciated.3  And  where  a  deposit  has  been  made  in  depre- 
ciated bills  in  a  bank  keeping  also  a  separate  account  of 
sj)ecie  deposits,  the  holder's  refusal  to  accept  depreciated  bills 
in  payment  of  a  check  against  the  deposit  does  not  prejudice 
his  right  to  protect  the  check  against  the  maker.4 

In  like  manner  a  note  for  so  many  "  dollars  "  is  payable  in 
United  States  currency,  although  the  consideration  for  it  was 
a  loan  in  depreciated  bank  notes.5  And  where  a  bank  is  only 
authorized  to  issue  bills  redeemable  in  gold,  it  cannot  be 
allowed  to  set  up  an  agreement  to  pay  in  Confederate  notes.6 
On  a  bill  payable  in  "  dollars,"  however,  a  judgment  cannot 
be  rendered  for  coin.7  Nor,  on  the  other  hand,  is  a  tender 
of  cotton  any  defense  to  such  a  bill  or  note.8 

§  103.  Parol  Evidence. — Furthermore  it  cannot  be  shown 
by  parol  that  "lawful  money"  means  "lawful  silver  money  ;"9 
nor  can  "current  lawful  money"  mean  other  than  what  is 
lawful  by  statute  and  it  cannot  be  explained  otherwise  by 
parol.10  So,  "current  money  of  Missouri"  cannot  be  sbown 
to  mean  paper  mone}7;11  or  "Illinois  currency,"  or  "cur- 
rency," or  "current  funds,"  to  mean  depreciated  bank  bills  ;12 

1  Bryan  v.  Harrison,  76  N.  C.  360  (1877). 

2 Osgood  v.  McConnell,  32  111.  74  (1S63). 

"Marine  Bank  of  Chicago  v.  Chandler,  27  111.  525  (1862) ;  Marine  Bank  of 
Chicago  v.  Ogden,  29  lb.  248  (1S62). 

4 Howes  v.  Austin,  35  111.  396  (1864). 

6Womack  v.  Walling,  1  Baxt.  425  (1872). 

6 Manufacturers  Bank  v.  Lamar,  46  Ga.  563  (1872),  notwithstanding  the 
scaling  ordinance  of  1865. 

'Davidson  v.  Peticolas,  34  Tex.  27  (1870).  But  see  Harrell  v.  Barnes,  34 
Tex.  413  (1870). 

8  Lang  v.  Waters,  47  Ala.  625  (1872). 

•Alsop  v.  Goodwin,  1  Root  196  (1790). 

10 Lee  v.  Biddis,  1  Dall.  175  (1786). 

"Cockrill  v.  Kirkpatrick,  9  Mo.  6S8  (1846). 

"Marine  Bank  v.  Berney,  28  111.  90  (1862),  notwithstanding  the  custom  of 
Chicago  banks  to  pay  depositors. in  the  same  depreciated  bills  in  which 
their  deposits  were  made.  See,  too,  Springfield  Marine,  &c,  Ins.  Co.  v.  Tincher,. 


PAROL    EVIDENCE.  133 

or  "current  bankable  funds  ;"1  or  "any  current  bank  paper 
or  State  treasury  notes  of  the  State  of  Texas"  to  mean  Con- 
federate currency.2  But  it  may  be  shown  by  parol  that 
"current  funds"  are  equivalent  to  money.3 

Neither  is  parol  evidence  admissible  to  show  that  it  was 
intended  that  a  note  or  bill  should  be  paid  in  work  ;*  or  in 
real  estate;5  or  in  Indiana  State  stock  money;6  or  in  rail- 
road notes;7  or  in  debts  of  other  persons;8  or  in  goods;9  or 
that  it  should  be  paid  in  bank  notes,  notwithstanding  it  was 
expressly  "to  be  canceled  by  a  cotton  bond."10  For  a  con- 
sideration of  the  numerous  cases  that  have  arisen  under  the 
"sealing"  acts  and  ordinances  of  some  of  the  Southern  States 
the  reader  is  referred  to  the  chapter  on  Payment,  in  a  later 
part  of  this  work. 

30  lb.  399  (1863).  So,  too,  when  payable  in  "current  funds,"  Marc  v.  Kup- 
fer,  34  III.  286  (1864).  But  it  was  held  in  Pilmer  v.  Branch  Bank,  16  Iowa 
330  (1864),  that  the  parol  evidence  was  admissible  to  explain  an  order  paya- 
ble in  currency,  Dillon,  J.,  saying  :  "  The  word  '  currency  '  is  far  from  having 
a  settled,  fixed  and  precise  meaning,  and  even  if  it  had  such  a  meaning  in 
general,  it  might  acquire  in  certain  localities  or  among  certain  classes  a  dif- 
ferent signification.  *  *  *  We  believe,  upon  examination  and  contrary 
to  our  first  impression,  that  where  a  note  is  payable  in  currency,  no  rule  is 
violated  in  receiving  evidence  of  the  general  and  customary  meaning  of 
tbese  words  at  the  place  where  the  draft  is  payable." 

lTaylor  v.  Turley,  33  Md.  500  (1870) ;  Turley  v.  Taylor,  6  Baxt.  376  (1873). 

2  Woods  v.  Parker,  36  Tex.  131  (1871). 

8  American  Emigrant  Co.  v.  Clark,  47  Iowa  671  (1878). 

4 Bradley  v.  Anderson,  5  Vt.  152  (1833). 

5Linville  v.  Holden,  2  MacArth.  329  (1876). 

6Burns  v.  Jenkins,  8  Ind.  147  (1856).  j 

THair  v.  La  Brouse,  10  Ala.  548  (1846). 

8Murchie  v.  Cook,  1  Ala.  41  (1840). 

•Cox  v.  Wallace,  5  Blackf.  199  (1839). 

l0Cole  v.  Handley,  8Sm.  &  M.  473  (1847). 


134  FOEM THE    OONTEACT    FOE    PAYMENT. 

IV.    ITS    CEETAINTY. 

A.   Certainty  as  to  Amount  and  Funds. 

104.  Certainty  of  Amount  Payable. 

105.  Marginal  Figures — Blanks. 

106.  Designation  of  Currency — Parol  Evidence — Statutes. 

107.  Payment  out  of  Particular  Fund. 

108.  Fund  Referred  to  for  Re-imbursement. 

§  104.  Certainty  of  Amount  Payable. — One  of  the  essential 
elements  of  negotiable  paper  is  certainty  of  amount  to  be 
paid.1  An  order  to  pay  "the  net  amount  of  sales"  is  not  a 
negotiable  bill  of  exchange;2  nor  one  for  "the  proceeds" 
of  a  shipment  of  goods  "valued  about  £2,000." 3  In  like 
manner  a  promise  to  account  for  the  proceeds  of  certain 
notes,4  or  to  pay  "whatever  you  may  collect  for  me  from 
A.,"6  is  not  a  negotiable  promissory  note.  So,  too,  the  fol- 
lowing instruments  have  been  held  to  be  non-negotiable: 
an  order  for  payment  for  "68  bushels  of  wheat  at  three 
cents  below  first  quality  wheat;"6  a  promise  to  pay  £100 
"and  all  fines  according  to  rule;"7  or  £100  "and  all 
other  sums  which  shall  be  due  him;"8  or  $100  "and 
such  additional  premiums  as  may  become  due"  on  a  certain 
policy  of  insurance  ;9  or  "deducting  all  advances  and  ex- 
^yles  95;  Chitty  154;  1  Daniel  56;  1  Edwards  |  153;  1  Parsons  37  :  Story 
on  Bills  §  42;  Storv  on  Prom.  Notes  \  20;  Smith  v.  Nightingale,  2  Stark.  375  ; 
Jones  v.  Simpson,*  2  B.  &  C.  318;  S.  C,  3  D.  &  R.  545;  Cushman  v.  Havnes, 
20  Pick.  132  (1838) ;  Fiske  v.  Witt,  22  lb.  83  (1839) ;  Hasbrook  v.  Palmer,  2 
McLean  10  (1839) ;  Legro  v.  Staples,  16  Me.  252;  Gaar  v.  Louisville  Banking 
Co.,  11  Bush  180  (1874)  ;  Matthews  v.  Redwine,  23  Miss.  233  (1851) ;  Still- 
well  v.  Craig,  58  Mo.  24  (1S74). 

2  Jackson  v.  Tilghman,  1  Miles  31  (Pa.  1835). 

3  Jones  v.  Simpson,  2  B.  &  C.  318;  S.  C,  3  D.  &  R.  545. 
4Fiske  v.  Witt,  22  Pick.  83  (1839). 

5 Legro  v.  Staples,  16  Me.  252  (1839). 

6Lent  v.  Hodgman,  15  Barb.  274  (1853). 

7Ayrey  v.  Fearnsides,  4  M.  &  W.  168.  So,  if  it  contains  an  agreement  to 
pay  all  taxes  that  mav  be  levied  upon  it  or  upon  a  collateral  mortgage, 
Farquhar  v.  Fidelity  Ins.  Co.,  13  Phila.  473  (1878). 

•Smith  v.  Nightingale,  2  Stark.  375 ;  Bolton  v.  Dugdale,  4  B.  &  Ad.  619; 
S.  C,  1  N.  &  M.  412 ;  Firbank  v.  Bell,  1  B.  &  Aid.  36. 

"Dodge  v.  Emerson,  34  Me*.  96  (1-852)  ;  Marrett  v.  Equitable  Ins.  Co.,  54 
Me.  537  (1867) ;  Lime  Rock  Ins.  Co.  v.  Hewett,  60  Me.  407  (1872);  Palmer 
v.  Ward,  6  Gray  340  (1S56). 


CERTAINTY  OF  AMOUNT  PAYABLE.  135 

penses;"1  or  "first  deducting"  amount  that  may  be  owing 
from  the  payee  to  the  maker.2  In  Iowa,  however,  a  note  for 
$100  "due  for  building  my  mill,  subject  to  diminution  by 
any  excess  in  certain  bills  of  hardware  over  the  original 
bills,"  has  been  held  to  be  for  an  amount  certain.3 

In  general  the  rule  requiring  certainty  as  to  amount  is 
satisfied  if  the  amount  can  be  ascertained.  Thus,  "  the  sum 
making  $450  on  the  first  day  of  January  next,"  is  sufficiently 
certain.4  So,  too,  is  a  certain  sum  per  acre  for  a  designated 
tract  of  land.5  And  an  indorsement  on  a  bond,  "  Pay  the 
within  contents  to,"  &c,  has  been  held  to  constitute  a  good 
bill  of  exchange.6  And  the  amount  is  not  rendered  uncer- 
tain by  the  addition  of  such  words  as  "with  interest,"7 
"with  current  exchange  on  B."8  Neither  is  the  mere  mis- 
spelling of  the  number  of  dollars,  e.  g.  "fife  hundret,"  "thee 
hundred,"  of  any  consequence  if  there  is  no  doubt  as  to  the 
amount  intended.9 

'Cushman  v.  Haynes,  20  Pick.  132  (1838).  So,  a  note  containing  a  pro- 
vision that  a  smaller  amount  "if  paid  January  1st,  shall  cancel  this  note," 
Fralick  v.  Norton,  2  Mich.  130  (1S51). 

2Barlow  v.  Broadhurst,  4  Moore  471;  Leeds  v.  Lancashire,  2  Campb.  205. 

3Green  v.  Austin,  7  Iowa  521  (1859). 

*  Knight  v.  Jones,  21  Mich.  161  (1870). 

BSmith  v.  Clopton,  4  Tex.  109  (1849). 

6Bay  v.  Freazer,  1  Bay  66  (1789). 

'Interest  from  date  being  intended,  and  the  fact  that  the  note  is  only 
payable  after  the  maker's  death  being  immaterial,  Richards  v.  Richards  2 
B.  &  Ad.  447  (1831);  Roffey  v.  Greemvell,  10  Ad.  &  El.  222  (1839).  But  a 
nolo  lias  been  held  to  be  non-negotiable  if  payable  "  with  interest  the  same 
as  savings  banks  pay,"  Whitwell  v.  Winslow,  134  Mass.  343  (1883);  or  in 
two  years  with  interest,  or  without  interest,  if  paid  within  one  vear,  Lamb 
v.  Story,  45  Mich.  488  (1881).  And  it  is  not  sufficiently  certain  to  make  a 
note  tor  the  payment  of  money  and  also  "all  counsel  fees  and  expenses  in 
collecting  the  note  if  it  is  sued  on  or  placed  in  the  hands  of  an  attorney  for 

collection,"  First  Nat.  Bank  v.  Bynum,  84  N.  C.  24  (1881);  or  "with  — 

per  cent,  attorney's  commissions  if  collected,"  Johnston  v.  Sneer,  92  Penna. 
St   227  (1879). 

•Price  v  Teal,  4  McLean  201  (1847);  Grutacup  v.  Woulluise,  2  lb.  581; 
Smith  r.  Kendall,  9  Mich.  241  (1861);  Leggett  v.  Jones,  10  Wis.  34  (1859). 
So,  to<,.  Bradley  v.  Lill,  4  Biss.  C.  C.  473  (1867),  overruling  Lowe  v.  Bliss.  24 
III.  168.  The  contrary  was  held  in  Russell  v.  Russell,  1  MacArth.  26:5  (1874), 
where  the  bill  was  payable  and  drawn  in  the  same  place.  See,  also,  contra, 
Lowe  v.  Bliss,  24  111.  168  (1S6U);  Philadelphia  Bank  v.  Newkirk.  2  Miles 
(Pa.)  442;  Fitzharris  v.  Leggett,  10  Mo.  App.  527  (1881). 

9Ohm  w.Yung,  63  End.  482  (1878);  Burnham  v.  Allen,  1  Gray  496  (1854)  ; 
especially  if  the  amount  is  correctly  given  in  figures  in  the  margin,  as  in 
the  latter  case. 


136  FORM THE    CONTRACT    FOR    PAYMENT. 

§  105.  Marginal  Figures — Blanks. — It  is  usual  and  advisa- 
ble to  express  the  amount  in  the  body  of  the  instrument  in 
words  at  length,  and  also  in  the  margin,  at  top  or  bottom,  in 
figures.  In  checks  the  marginal  figure  is  usually  placed  at 
the  lower  left-hand  corner;  in  notes  at  the  upper  left-hand 
corner ;  and  in  bills  of  exchange  at  either  left-hand  corner 
indifferently.  Unless  required  by  statute,  the  marginal  fig- 
ures are  unnecessary,1  and  form  no  part  of  the  instrument.2 
They  are  of  service  chiefly  in  aiding  an  omission  or  clearing 
up  a  doubt.3  Moreover,  where  the  amount  is  left  blank  in 
the  body  of  the  instrument,  they  serve  as  a  restriction  upon 
the  holder's  authority  to  fill  the  blank.4  On  the  other  hand, 
both  the  existence  of  a  blank  and  the  authority  to  fill  it  are 
sometimes  implied  from  the  figures  in  the  margin.5  Where 
the  amount  in  the  margin  differs  from  that  in  the  body  of 

'Chittv  172;  Elliott's  Case,  2  East  P.  C.  951 ;  Sweetser  v.  French,  13  Mete. 
262  (1847). 

'Riley  v.  Dickens,  19  111.  30  (1857);  Smith  v.  Smith,  1  R.  I.  398  (1850); 
and  it  was  held  in  this  case  that  an  alteration  of  the  marginal  figures  was 
immaterial.  And  in  Hollen  v.  Davis,  59  Iowa  444  (1882),  it  was  held  that 
there  could  be  no  recovery  at  law  on  a  note  containing  no  other  expression 
of  amount  than  the  marginal  figures.  See,  too,  Norwich  Bank  v.  Hyde,  13 
Conn.  279,  in  which  case  Williams,  C.  J.,  said  :  "The  aid  the  margin  is  to 
give  is  to  remove  an  ambiguity  in  the  body  of  the  instrument  or  to  clear  up 
a  doubt — not  to  supply  a  blank."  To  the  same  effect,  see  Corgan  v.  Frew, 
39  111.  31,  in  which  case,  however,  the  marginal  figures  are  declared  to  be  a 
part  of  the  note.  But  the  number  of  a  bond  on  the  margin  is  no  such  part 
of  it  that  its  alteration  is  material,  Commonwealth  v.  Emigrant  Sav.  Bank, 
98  Mass.  12  (1867). 

3  Where  the  marginal  figure  is  plain  and  the  body  of  the  instrument  ob- 
scure, the  amount  is  a  question  for  the  jury,  Paine  v.  Ringold,  43  Mich.  341 
(18S0). 

4Bovd  v.  Brotherson,  10  Wend.  93;  Norwich  Bank  v.  Hvde,  13  Conn.  279 
(1839)';  Henderson  v.  Bondurant,  39  Mo.  369  (1867);  Carson  v.  Hill.  1 
McMiill.  76.  But  see,  as  to  alteration  of  marginal  figures  and  filling  blank 
for  a  larger  amount,  Shryver  v.  Hawkes,  22  Ohio  St.  308  (1872)  ;  Woolfolk 
i'.  Bank  of  America,  10  Bush  504  (1874);  Hall  v.  Bank  of  Commonwealth,  5 
Dana  258  (1837). 

5This  was  held  to  be  so  in  a  case  where  the  marginal  figures  were  "$334," 
and  the  amount  in  writing  "three  hundred  dollars  "with  an  intervening 
space,  Clute  v.  Small,  17  Wend.  238  (1837) ;  Boyd  v.  Brotherson,  10  Wend. 
93  (1833),  where  the  writing  was  only  "eight"  and  the  marginal  figures 
"$800."  It  being  a  question  of  intention  for  the  jury  whether  the  words 
should  be  added,  Boyd  v.  Brotherson,  supra.  But  see  Saunderson  v.  Piper, 
5  Bing.  N.  C.  425  (1839) ;  S.  C,  7  Scott  408,  where  it  was  held  that  evidence 
of  such  intention  was  inadmissible  and  that  the  amount  written  in  the  body 
of  the  instrument  could  not  be  enlarged  to  conform  to  the  marginal  figures 
and  stamp.  On  the  other  hand,  a  simple  omission,  like  that  of  the  word 
"dollars,"  may  be  supplied  from  the  marginal  figures,  Sweetser  v.  French, 
13  Mete  262  (1847). 


MARGINAL   FIGURES.  137 

the  instrument,  the  latter  controls.1  Statutory  provision  is 
made  in  some  foreign  States  for  the  way  in  which  the  amount 
shall  be  expressed  and  for  the  case  of  discrepancy  between 
words  and  figures  where  both  are  used.2  In  the  absence  of 
other  statutory  requirements  the  amount  to  be  paid  may  be 
expressed  either  in  words  or  in  figures.3 

Maimer's  Dig.  12;  Bvles  85;  Chittv  173;  1  Daniel  94;  Saunderson  v. 
Piper,  5  Bing.  N.  C.  425;  S.  C,  7  Scott  408;  Mears  v.  Graham,  8  Blackf.  144 
(1846) ;  Payne  v.  Clark,  19  Mo.  152  (1853).  But  it  was  otherwise  determined 
on  a  question  of  intention  in  Riley  v.  Dickens,  19  111.  30  (1857). 

2 The  amount  to  be  paid  must  be  expressly  stated  (Code  Napoleon  %\  110, 
1SS)  in  Belgium,  France,  Greece,  Hayti,  Geneva,  San  Domingo  and  Turkey ; 
also  in  Bolivia  (1834  Code  Com.  Arts.  349,  463,  468  and  the  amount  must  be 
stated  either  in  money  or  in  currency  receivable  in  trade) ;  Chili  (1865  Code 
Com.  Arts.  632,  633,  765,  766,  771);  Colombia  (1853  Code  Com.  Art.  517); 
Costa  Rica  (1853  Code  Com.  Art.  510);  Germany  (1848  Exch.  Law  Arts.  4, 
96) ;  Holland  (1838  Exch.  Law  Arts.  100,  208,  210);  Austria  (1850  Exch.  Law 
Arts.  4,  96) ;  Hungary  (1860  Exch.  Law  ch.  1  \  1,  as  to  bills) ;  Ecuador  (same 
as  Spain);  Mexico  (1854  Code  Com.  Arts.  223,  447);  Nicaragua  (1869  Code 
Com.  Arts.  241,  312,  316) ;  Honduras,  Guatemala  and  Paraguay  (177*  Ordc. 
Bilbao  c.  1  I  2;  c.  14  \  1) ;  Peru  (1853  Code  Com.  Art,  522,  as  to  drafts  and 
notes) ;  Portugal  (1833  Code  Com.  Arts.  321,  426) ;  Lower  Canada  (1867  Civil 
Code  \l  2280,  2344) ;  Spain  (1829  Code  Com.  Art.  563,  as  to  drafts  and  notes) ; 
Sweden  and  Norway  (1851  Exch.  Law  ch.  1  \  1) ;  Switzerland  (Basle  1863  §  3; 
Berne  1859  I  3);  Venezuela  (1862  Code  Com.  Art.  1;  also  Law  II.  Art.  1). 
The  sum  to  be  paid  and  the  currency  in  which  it  is  to  be  paid  must  be 
expressed  as  an  essential  part  of  the  instrument  in  the  Argentine  Republic 
(1862  Code  Com.  Art.  776) ;  Brazil  (1850  Code  Com.  Arts.  354,  426) ;  Colombia 
(1853  Code  Com.  Art.  3S4) ;  Costa  Rica  (1853  Code  Com.  Art.  373);  Peru 
(1853  Code  Com.  Art.  381,  in  bills  of  exchange) ;  Russia  (1832  Exch.  Law 
Ait,  541 ) ;  Salvador  (1855  Code  Com.  Arts.  381,  510) ;  Mexico  (1854  Code  Com. 
Arts.  223,  447) ;  Spain  (1829  Code  Com.  Art,  426,  in  bills  of  exchange) ;  Switz- 
erland (Zurich  1805  §  1,  usually  in  words  and  figures) ;  Uruguay  (1865  Code 
Com.  Art.  789) ;  Venezuela  (1862  Code  Com.  Art.  1,  as  to  bills).  The  amount 
to  be  paid  must  be  expressed  "  in  letters  complete  "  in  Italy  (1865  Code  Com. 
Art.  196);  and  "in  letters  and  without  abbreviations"  in  Peru  (1853  Code 
Com.  Art.  382) ;  and  "in  the  body  of  the  instrument  in  letters  "  in  Switzer- 
land (Basle  1863  g  3;  Berne  1859  §  3).  The  amount  to  be  paid  must  in  a  bill 
of  exchange  be  expressed  both  in  words  and  figures  in  Denmark  (1825  Exch. 
Law  \  7) ;  and  in  Russia  (1832  Exch.  Law  Art,  545).  If  the  amount  named 
in  the  margin  and  that  in  the  body  differ,  the  latter  controls  in  the  Argen- 
tine Republic  (1862  Code  Com.  Art.  792) ;  Brazil  (1S50  Code  Com.  Art.  359) ; 
Chili  (1865  Code  Com.  Art.  636);  Germany  (1848  Exch.  Law  Art,  5) ;  Austria 
(1850  Exch.  Law  Art.  5) ;  Urxiguay  (1865  Code  Com.  Art.  511).  If  the  words 
and  figures  expressing  the  amount  payable  differ,  the  smaller  sum  governs, 
unless  there  is  evidence  of  a  contrary  intention  and  an  acceptance  for  the 
larger  sum  is  at  the  risk  of  the  acceptor  in  Denmark  (1825  Exch.  Law  \  7). 
If  the  amount  to  be  paid,  as  given  several  times,  varies,  whether  in  words 
or  figures,  the  smallest  sum  governs  in  the  Argentine  Republic  (1862  Code 
Com.  Art,  792);  Austria  (1850  Exch.  Law  Art.  5);  Germany  (1848  Exch. 
Law  Art,  5) ;  Sweden  and  Norway  (1851  Exch.  Law  ch.  1  \  4) ;  Uruguay  (1865 
Code  Com.  Art,  811).  The  statutes  of  Upper  Canada  (1859  vol.  1  p.  230  ;  vol. 
2  p.  150)  prohibits  any  hill  or  stamped,  printed  or  engraved  plate  for  the 
payment  of  less  than  one  dollar.  In  Norway  domestic  bills  under  one  hun- 
dred species-thaler  are  prohibited  (1830  Laws  p.  414). 

'Nugent  i'.  Roland,  12  Mart.  O.  S.  663  (La.  1823).     In  this  case  it  was  said 


138  FORM THE    CONTRACT    FOR,    PAYMENT. 

If  the  amount  is  left  blank  by  the  maker,  it  implies  an 
authority  to  the  holder  to  fill  it  with  any  sum.1  In  England, 
if  stamped  paper  is  used,  the  authority  is  limited  to  the 
amount  warranted  by  the  stamp.2  If  the  amount  is  left 
blank  by  the  maker  or  drawer  and  the  blank  filled  for  an 
amount  greater  than  was  authorized,  he  will  still  be  liable 
to  a  bona  fide  holder  for  the  amount  of  the  instrument  as 
filled  in.3 

by  Martin,  J. :  "  It  is  certainly  very  unsafe  and  may  be  said  improper  to  state 
the  sum  to  be  paid  in  a  bill  or  note  in  figures  ;  but  no  law  avoids  a  bill  or 
note  on  that  account  and  authorizes  us  to  allow  a  person  who  gives  such  a 
bill  or  note  to  avail  himself  of  his  own  wrong  and  get  rid  of  his  obligation." 
This  decision  was  at  once  followed  by  an  act  providing  that  "no  bill  of 
exchange,  promissory  note,  bank  note,  draft  or  check  (and,  now,  all  obliga- 
tions for  the  payment  of  money)  shall  be  obligatory  or  admissible  as  evi- 
dence of  a  debt  unless  the  sum  of  money  mentioned  or  specified  therein  to 
be  due  or  payable  be  expressed  in  words  at  full  length,"  an  exception  being 
made  in  favor  of  instruments  executed  out  of  the  State  and  shown  to  be  in 
accordance  with  the  law  or  usages  of  the  place  of  execution,  1823  P.  L.  36. 
For  this  exception  is  now  substituted  the  proviso,  "unless  the  same  shall  be 
accompanied  by  proof  that  it  was  given  for  the  sum  therein  expressed. 
The  cents  or  fractional  parts  of  a  dollar  may  be  in  figures,"  1870  R.  S.  \  319. 

'Chittv  38;  1  Edwards  \  91 ;  1  Parsons  109;  Bank  of  Commonwealth  v. 
Curry,  2  Dana  142  (1834) ;  Bank  of  Limestone  v.  Penick,5  T.  B.  Mon.  25  (1S27) ; 
Hall  v.  Bank  of  Commonwealth,  5  Dana  258  (1837) ;  Fullerton  v.  Sturges,  4 
Ohio  St.  529  (1855) ;  Frazier  v.  Gains,  2  Baxt.  92  (1872) ;  McArthurv.  McLeod, 
6  Jones  475  (185!)).  For  authority  to  fill  blanks  in  general,  see  Chap.  VI.  But 
where  the  amount  to  be  paid  depends  on  the  place  of  payment  to  be  desig- 
nated by  indorsement  on  a  corporation  bond,  the  blank  place  in  the  in- 
dorsement cannot  be  filled  without  special  authority,  Parson  v.  Jackson,  9 
Otto  434  (1878).  So,  too,  a  blank  for  attorney's  commissions,  without  which 
the  amount  payable  is  uncertain  and  the  note  non-negotiable,  Johnston  v. 
Speer,  92  Penna.  St.  227  (1879). 

2Chitty  38;  Collis  v.  Emmett,  1  H.  Bl.  313;  Russell  v.  Langstaffe,  Dougl. 
496  ;  Snaith  v.  Mingay,  1  M.  &  S.  87  ;  Crutchley  v.  Mann,  5  Taunt.  529  ;  S.  C, 
1  Marsh.  29;  Crutchley  v.  Clarence,  2  M.  &  S.  90;  Pasmore  v.  North,  15 
East  517. 

31  Daniel  145;  1  Parsons  33,  109;  Collis  v.  Emmett,  1  H.  Bl.  313;  Russell 
v.  Langstaffe,  2  Doug.  514;  Snaith  v.  Mingay.  1  M.  &  S.  87;  Leslie  v.  Hast- 
ings, 1  Man.  &  Ry.  119;  Molloy  v.  Delves,  7-Bing.  428;  S.  C,  5  M.  &  P.  275  ; 
S.  O,  4  C.&  P.  492;  Barker  v.  Steam,  9  Exch.  684;  Bank  of  Commonwealth 
v.  Curry,  2  Dana  142  (1834);  Hall  v.  Bank  of  Commonwealth,  5  lb.  258 
(1837) ;  Van  Duzer  v.  Howe,  21  N.  Y.  351  (1860);  Herbert  v.  Huie,  1  Ala.  18 
(1840);  Huntington  v.  Bank  of  Mobile,  3  lb.  186  (1841);  Decatur  Bank  v. 
Spence,  9  lb.  800  (1846);  Chemung  Canal  Bank  v.  Bradner,  44  N.  Y.  680 
(1871);  Johns  v.  Harrison,  20  Ind.  317  (1863)  ;  Wilson  v.  Kinsey,  49  lb.  35 
(1874);  McArthur  v.  McLeod,  6  Jones  L.  475  (1859);  Frazier  v.  Cains, 
supra;  Putnam  v.  Sullivan,  4  Mass.  45;  Abbott  v.  Rose,  62  Me.  194  (1873)  ; 
Smith  v.  Lockridge,  8  Bush  423  (1871);  Jones  v.  Shelbyville  Ins.  Co., 
1  Mete.  58  (Ky.  1858);  Bank  of  Limestone  v.  Penick,  supra;  Young  v. 
Ward,  21  111.  223  (1859);  Nichol  v.  Bate,  10  Yerg.  429  (1837);  Waldron 
v  Young,  9  Heisk.  777  (1872);  Joseph  i\  National  Bank,  17  Kans.  256 
(1876)  And  in  like  case  a  surety  is  held  where  the  maker  fills  the  blank 
contrary  to  his   verbal  agreement  with   the  surety,  Gothrupt  v.   William 


DESIGNATION    OF    CURRENCY.  139 

§  106.  Designation  of  Currency — Parol  Evidence — Stat- 
utes.— The  amount  to  be  paid  may  be  designated  in  any 
currency  of  ascertainable  or  known  value.  For  the  mean- 
ing of  such  words  as  "sterling,"  "currency,"  "dollars,"  &c, 
the  reader  is  referred  to  another  part  of  this  work.1  Where 
such  words  as  "pounds,"  "shillings,"  "dollars,"  are  altogether 
omitted,  the  instrument  will  not  be  vitiated  if  the  meaning 
is  unmistakable.2  And  an  amount  that  has  been  made  too 
large  by  mistake  may  be  corrected,  or  the  mistake  may  be 
set  up  in  defense,  between  the  original  parties.3  But  parol 
evidence  is  inadmissible,  as  in  other  cases,  to  vary  the  instru- 
ment by  showing  that  a  different  amount  was  agreed  upon, 
except  in  cases  of  fraud  and  mistake.  Thus,  if  a  note  be 
given  for  $100,  the  price  of  goods  purchased,  it  cannot  be 
shown  in  defense  that  a  different  price  was  agreed  upon  ;4  or 
if  for  the  hire  of  a  certain  negro,  that  the  wages  were  to  be 
higher  if  cotton  sold  for  $300  per  hundred  weight.5 

It  is  required  by  statute  of  many  States,  as  well  as  by 
the  common  law,  that  the  amount  to  be  paid  shall  be  cer- 

son,  61  Ind.  599  (1878).  So,  an  indorser  before  delivery  is  liable  to  a  holder 
for  value  without  notice  for  a  blank  filled  in  excess  of  his  authority,  Diercks 
v.  Roberts,  13  So.  Car.  338  (1879).  Leaving  blanks,  however,  for  payee's 
name  and  amount  gives  no  authority  to  add  "from  maturity"  to  a  com- 
plete interest  clause;  and  such  an  :>'-<<ration  is  material  and  discharges  the 
maker,  Coburn  v.  Webb,  56  Ind.  9*'.  i  77).  As  to  liability  for  blanks  negli- 
gently left  and  fraudulently  filled,  as  well  as  liability  to  holders  with  notice, 
see  Chap.  VJ. 

lSee  Section  III.  of  this  chapter.  A  note  for  "500  pounds  sterling  money 
of  the  United  Kingdom  of  Great  Britain  and  Ireland,"  is  negotiable,  King  v. 
Hamilton,  12  Fed.  Rep.  478  (1882). 

3Bvles  86;  Elliot's  Case,  2  East  P.  C.  951;  S.  C,  1  Leach  175;  Phipps  v. 
Tanner,  5  C.  &  P.  488;  Williamson  v.  Smith,  1  Coldw.  1  (1860);  Booth  v. 
Wallace,  2  Root  247  (1795) ;  Harman  v.  Howe,  27  Gratt.  677  (1876) ;  McCoy 
v.  Gilmore,  7  Ohio  268  (1835) ;  Grant  v.  Brotherton,  7  Mo.  458  (1842)  ;  Mor- 
rill v.  Handy,  17  Mo.  406  (1853)  ;  Cooll.n.th  v.  Pnrinton,  29  Me.  4B9  (1849); 
Northrop  v.  Sanborn,  22  Vt.  433  (1850) ;  Corgan  v.  Frew,  37  111.  31-  (1865) ; 
Beardsley  v.  Hill,  61  111.  354  (1871);  Petty  v.  Fleishel,  31  Tex.  169  (1868); 
Ohm  v.  Yung,  63  Ind.  432  (1878).  See,  contra,  Brown  v.  Bebee,  1  D.  Chip. 
227  (Vt.  1814). 

3Claxon  v.  Demaree,  14  Bush  172  (1878).  So,  where'an  agreement  to  re- 
fund on  certain  contingency  was  omitted  by  fraud,  Coger  v.  McGee,  2  Binb 
321.  So,  where  it  is  given  for  a  nominal  premium  to  cover  risks  that  may 
be  afterward  indorsed,  Maine  Mut.  Ins.  v.  Stockwell,  67  Me.  382  (1877). 

'Downs  v.  Webster,  Brayt.  79  (Vt.  1820). 

&Gazaway  v.  Moore,  Harper  401  (1824). 


140  FORM THE    CONTRACT    FOR    PAYMENT. 

tain.1  The  amount  for  which  a  bill  or  note  may  be  issued  is  in 
general  left  unrestricted  by  statute.  In  Great  Britain  certain 
restrictions  exist  as  to  notes  and  bills  under  twenty  shillings, 
and  bank  notes  and  other  notes  to  bearer  under  five  pounds.2 
A  similar  restriction  still  exists  in  South  Carolina  as  to  bills 
and  notes  under  one  dollar.3 

§  107.  Payment  Out  of  Particular  Fund. — As  we  have  seen, 
the  commercial  character  of  an  instrument  depends  upon  its 
being  a  contract  for  unconditional  payment.  From  this  fol- 
lows the  rule  that  it  must  not  be  made  payable  out  of  any 
particular  fund,  and  if  made  so  payable,  its  negotiability  is 
destroyed  thereby.4 

'In  California  negotiable  instruments  must  be  "for  the  payment  of  a  cer- 
tain sum  of  money  "  (Civ.  Code  of  1872  g  8087).  In  Dakota  the  same  pro- 
vision has  been  enacted  (Rev.  Code  1877  g  1821).  In  Georgia  a  promissory 
note  must  be  for  "a  specified  amount  of  money  or  other  articles  of  value" 
(Code  1873  g  2774).  And  in  Idaho  for  "  a  sum  of  money  therein  mentioned  " 
(Rev.  L.  1875  p.  652  g  1 ).  In  Kansas  negotiable  notes  and  bills  must  be  "  for 
a  sum  or  sums  of  money  certain  "  (Comp.  L.  1879  c.  14  g  1).  In  Louisiana 
the  amount  may  be  expressed  in  figures  only,  but  in  such  case  there  can  be 
no  recovery  without  evidence  to  support  the  instrument  (1855  P.  L  p.  47  ; 
C.  C.  g  2248).  In  Michigan  promissory  notes  for  the  payment  of  a  "sum 
of  money  therein  mentioned  "  are  made  negotiable  (1  Comp.  L.  1871  p.  515 
g  1).  In  Nebraska  negotiable  instruments  must  be  for  a  "sum  or  sums  of 
money  certain  "  (1873  G-.  S.  c.  32  §  1 ;  1866  R.  S.  c.  27).  In  Nevada  negotiable 
notes  must  be  for  "a  sum  of  money  therein  mentioned"  (1  Comp.  L.  1873 
c.  5  g  9;  1861  P.  L.  p.  4).  So,  in  New  Jersey  (1795  Pat.  Rev.  p.  342  g  4;  1874 
Rev.  p.  897  g  1)  So,  in  New  York  (2  R.  S.,  Ed.  1875,  p.  1160  g  2;  1  R.  L. 
1801  p.  151).  In  Ohio  for  a  "sum  or  sums  of  monev  certain  "  (1S80  R  S.  gg 
3171  ;  1830  P.  L.  p.  217  \  1).  In  Oregon  as  in  New  York  (1872  G.  L.  p.  718  c. 
48  g  2).     In  Wisconsin  likewise  (1878  R.  S.  g  1675). 

2"  By  48  Geo.  III.  c.  8S  g  2,  negotiable  bills,  notes  and  checks  for  less  than 
20s.  are  made  void,  and  by  g  3  a  penalty  is  imposed  for  issuing  or  nego- 
tiating them.  But  by  23  and  24  Vict.  c.  Ill  g  19,  checks  for  less  than  20  shil- 
lings are  made  lawful.  Bills  and  notes  for  less  than  £5  and  over  20s.  were 
regulated  by  17  Geo.  III.  c.  30 ;  but  this  act  was  suspended  except  as  to  notes 
payable  to  bearer  on  demand  by  26  and  27  Vict.  c.  105,  and  the  suspension  is 
continued  by  39  and  40  Vict.  c.  69.  There  are  no  restrictions  as  to  amount  in 
respect  of  non-negotiable  bills  and  notes,"  Chalmer's  Dig.  11.  Bank  notes 
under  £5  have  been  prohibited  in  England  since  1S29  by  7  Geo.  IV.  c.  6  g  3. 
And  in  1831  the  act  of  9  Geo.  IV.  c.  65,  prohibited  the  issue  or  negotiation  in 
England  of  any  note  for  less  than  £5  payable  to  bearer  on  demand,  made 
or  issued  or  purporting  to  be  made  or  issued  "in  Scotland  or  Ireland  or 
elsewhere  out  of  England." 

3In  South  Carolina  bills  and  notes  to  order  or  bearer  for  any  sum  under 
one  dollar  are  void,  and  the  passing  of  such  bills  is  subjected  to  a  penalty 
(1873  R.  S.  320  g  21 ;  1816  P.  L.  p.  34  g  1). 

4  B vies  98;  Chitty  159;  1  Daniel  53;  1  Edwards  g  157 ;  1  Parsons  43;  Story 
on  Bills  g  46;  Jenny  v.  Herle,  2  Ld.  Raym.  1361 ;  S.  C,  8  Mod.  265;  S.  C,  1 
Stra.  591  ;  Havdock  v.  Lynch,  2  Ld.  Ravin.  1553;  Dawkes  v.  De  Loraine,  2 
W.  Bl.  782;  S.  C,  3  Wils.  207:   Yates  u.'Grove,  1  Ves.  280;  Stevens  v.  Hill, 


PAYMENT  OUT  OF  PARTICULAR  FUND.        141 

Thus  a  bill  or  note  is  payable  out  of  a  particular  fund  and 
therefore  not  negotiable,  if  payable  out  of  the  proceeds  of 
certain  bonds  or  drafts,1  or  other  personal  property;2  or  on 
account  of  cotton  consigned,  with  a  promise  to  pay  out  of  the 
proceeds.3  So,  too,  if  "  on  account  of  brick  work  done  "  on 
a  certain  building,4  or  of  freight  to  be  earned;5  or  an  order 
on  a  State  Treasurer  by  the  public  printer  to  pay  "  out  of 
any  moneys  in  your  hands  due  me  for  printing;"6  or  on  the 
Postmaster  General  by  a  mail  contractor,  with  the  words 
"and  charge  the  same  to  my  account  for  transferring  the 
United  States  mail;"7  or  by  a  private  contractor,  with  the 

5  Esp.  247;  Carlos  v.  Fancourt,  5  T.  R.  482;  Waters  v.  Carleton,  4  Porter 
205  (1836) ;  Gliddon  v.  McKinstry,  28  Ala.  408  (1856) ;  West  v.  Foreman,  21 
76.  400;  Wilamouicz  v.  Adams,  13  Ark.  12  (1852) ;  Owen  v.  Lavine,  14  Ark. 
389(1854);  Hamilton  v.  Myrick,  3  76.  541  (1841);  Mills  v.  Kuykendall,  2 
Blackf.  47  (1827);  Strader  v.  Batchelor,  8  B.  Mon.  168  (1847);  Turner  v. 
Peoria,  &c,  R.  R.  Co.,  95  111.  134  (1880);  Second  Nat,  Bank  v.  Lansing,  1 
Brown  181  (1870) ;  Van  Vacter  v.  Flack,  1  Sm.  &  M.  393  (1843) ;  Wadlinffton 
v.  Covert,  51  Miss.  631  (1875) ;  Harriman  v.  Sanborn,  43  N.  H.  128  (1861); 
Smith  v.  Wood,  Saxt.  90  (1830);  Herbert  v.  Tuthill's  Exr.,  76.  147  (1830); 
Rice  v.  Porter's  Admr.,  1  Harr.  440  (N.  J.  1838) ;  Atkinson  v.  Manks,  1  Cow. 
691,  707  (1823);  Cook  v.  Satterlee,  6  76.  108  (1826);  Worden  v.  Dods;e,  4 
Den.  159  (1847);  Van  Wagner  v.  Terrett,  27  Barb.  181  (1858)  ;  Tradesman's 
Nat,  Bank  v.  Green,  57  Md.  602  (1881) ;  Burch  v.  Newberry,  1  Barb.  648 
(1847);  Sheffield  School  v.  Andress,  56  Ind.  157  (1877);  Kinney  v.  Lee,  10 
Tex.  155  (1853);  Andrews  v.  Harvey,  39  Tex.  123  (1873);  Averett's  Admr. 
v.  Booker,  15  Gratt.  163  (1859);  Jackman  v.  Bowker,  4  Mete.  235  (1842); 
Raigauel  v.  Ayliff.  16  Ark.  594  (1855) ;  Blevins  v.  Blevins.  4  lb.  441  (1842) ; 
Cota  v.  Buck,  7  Mete.  5S9  (1844);  Carlisle  v.  Dubree,  3  J.  J.  Marsh.  .142 
(1830);  Reeside  v.  Knox,  2  Whart.  233  (1837);  Dyer  v.  Covington  Town- 
ship, 19  Penna.  St.  200  (1852)  ;  Nichol's  Admr.  v.  Davis,  1  Bibb  490  (1809) ; 
Smurr  v.  Forman,  1  Ohio  273  (1824) ;  Kelly  v.  Bronson,  26  Minn.  357 
(1880) ;  Curie  v.  Beers,  3  J.  J.  Marsh.  170  (1830) ;  Wiggins  v.  Vaught, 
Cheves  92  (1840). 

lKenney  v.  Hinds,  44  How.  Pr.  7  (1871) ;  Raigauel  v.  Ayliff,  16  Ark.  594 
(1855) ;  Brill  v.  Hoile,  53  Wis.  537  (1881). 

2  Worden  v.  Dodge,  4  Den.  159  (1847) ;  Atkinson  v.  Manks,  1  Cow.  691,  707 
(1823) ;  Curie  v.  Beers,  3  J.  J.  Marsh.  170  (1830) ;  Owen  v.  Lavine,  14  Ark. 
389  (1854). 

'Lowery  v.  Steward,  25  N.  Y.  239  (1862),  such  order  amounting  in  equity 
to  an  assignment  of  the  cotton. 

4Pitman  v.  Breckenridge,  3  Gratt.  121  (1S46).  But  see  Ex  parte  Shellard, 
22  W.  R.  152,  where  an  order,  payable  out  of  moneys  which  would  become 
due  the  drawers  on  the  completion  of  a  certain  contract,  was  held  to  oper- 
ate as  a  bill  of  exchange  and  require  a  stamp  as  such. 

5Bylea  98;  Banbury  v.  Lissett,  2  Stra.  1211.  But  a  like  order  from  the 
freighter  was  held  to  be  a  good  bill,  being  equivalent  to  an  admission  that 
the  money  was  due,  Pierson  v.  Dunlop,  Cowp.  571. 

6Wilamouicz  v.  Adams,  supra.  So,  Stebbins  v.  Union  Pacific  R.  R..  2  Wy. 
71  (1879). 

'Reeside  v.  Knox,  2  Whart.  233  (1837). 


142  FORM THE   CONTRACT    FOR    PAYMENT. 

words  "  and  charge  the  same  to  my  account  of  grading,  &c, 
as  per  contract;"1  or  an  order  payable  to  A.  B.,  "if  the 
same  be  due  him  from  me,  on  his  and  my  settlement,  out  of 
the  last  payment  due  on  the  houses  which  I  am  now  build- 
ing for  you;"2  Oi*  out  of  money  due  for  work  to  be  done, 
which  never  was  done.3  So,  too,  if  payable  out  of  one's 
growing  subsistence;4  or  "out  of  my  part  of  the  estate;"5 
or  "  as  soon  as  I  am  in  possession  of  funds  from  the  estate  of 
B.  ;"6  or  "  on  account  of  my  share  of  rent  which  will  be  due 
June  1st;"7  or  a  simple  order  for  the  payment  of  rents.8 
So,  too,  an  order  payable  out  of  moneys  to  be  collected  by 
an  attorney,  on  whom  the  draft  is  made;9  or  "out  of  the 
demand  I  have  against  the  estate  of  A.  ;"10  or  an  order  on  a 
sheriff,  "  out  of  12  bales  of  cotton  attached  by  you  ;"n  or  an 
order  on  a  partner,  with  the  words  "  and  deduct  the  same 
from  my  share  of  the  profits  of  the  partnership;"12  or,  in 
general,  "  out  of  any  money  in  your  hands  belonging  to 
me;"13  or  by  an  army  officer  on  a  regimental  paymaster  for 

lEhrioha  v.  De  Mill,  75  N.  Y.  370  (1878). 
*Jackman  v.  Bowker,  4  Mete.  235  (1842). 
3Crowell  v.  Plant,  53  Mo.  145  (1873). 

4  Josselyn  v.  Lacier,  10  Mod.  294;  Kussell  v.  Powell,  14  M.  &  W.  418,  where 
the  fund  referred  to  was  part  of  a  residuary  share  of  an  estate  payable  to 
the  drawer's  order  by  virtue  of  an  order  in  Chancery. 

5  Mills  v.  Kuykendall,  2  Blackf.  47  (1827) ;  Herbert  v.  Tuthill's  Exr.,  Saxt. 
147  (1830). 

6Wiggins  v.  Vaught,  Cheves  91  (1840). 

'Rice  v.  Porter's  Admr.,  1  Harr.  440  (N.  J.  1S3S). 

"Morton  v.  Naylor,  1  Hill  583  (1841). 

9Nichol's  Admr.  v.  Davis,  1  Bibb  490  (1809) ;  Hamilton  v.  Myrick,  3  Ark. 
541  (1841) ;  Blevins  v.  Blevins,  4  Ark.  441  (1842) ;  Glidden  v.  McKinstry,  28 
Ala.  408  (1856) ;  Shields  v.  Taylor,  25  Miss.  13  (1852) ;  Van  Vacter  v.  Flack, 
1  Sm.  &  M.  393  (1843) ;  Waters  v.  Carleton,  4  Porter  205  (1836) ;  Crawford  v. 
Cully,  Wright  453  (Ohio  1833).  But  such  a  note  has  been  held  not  to  be 
payable  out  of  a  particular  fund  where  made  payable  "as  soon  as  the 
amount  can  be  collected  out  of  the  contract,  and  if  not  so  collected,  in  four 
years,"  Smith  v.  Ellis,  29  Me.  422  (1849). 

10  West  v.  Foreman,  21  Ala.  400  (1852). 

"Wadlington  v.  Covert,  51  Miss.  631  (1875). 

"Munger  v.  Shannon,  61  N.  Y.  251  (1874).  But  a  note  promising  to  pay 
"forty  dollars  profits"  has  been  held  to  be  negotiable,  parol  evidence  not 
being  admitted  to  show  that  the  word  imputed  a  contingency,  Matthews  v. 
Crosby,  56  N.  H.  21  (1875).  And  to  the  same  effect,  see  Sears  v.  Wright,  24 
Me.  278  (1844). 

13Averett's  Admr.  v.  Booker,  15  Gratt.  163  (1859);  Lee,  J.,  distinguishing 
this  case  from  Joliffe  v.  Higgius,  6  Munf.  3,  where  the  order  for  payment 


FUND  KEFERRED  TO  FOR  RE-IMBURSEMENT.     143 

his  pay;1  or  an  order,  with  the  words  "being  the  amount 
that  came  to  you  from  B.  for  me,  and  this  shall  be  your 
warrant  for  so  doing  and  good  as  my  receipt  of  said  money."2 

On  the  other  hand,  the  following  instruments  have  been 
held  not  to  be  payable  out  of  a  particular  fund  and  to  be 
negotiable,  viz. :  "out  of  any  property  I  may  possess  ;"3  "out 
of  my  separate  property  and  estate;"4  "out  of  any  funds  not 
before  specifically  appropriated  ;"5  "as  soon  and  as  fast  as  the 
money  can  be  collected;"6  or  one  month  after  a  certain  life 
insurance  policy  becomes  due.7  So,  a  draft  in  general  terms 
by  the  Secretary  of  the  Treasury  for  money,  which  was  pay- 
able by  treaty  with  France.8  So,  too,  a  draft  payable  "on 
account  of  moneys  advanced  by  me  for  the  S.  &  F.  Com- 
pany. 

§  108.  Fund  Referred  to  for  Re-imbursement. — Moreover, 
a  fund  is  often  referred  to  in  a  bill  of  exchange  to  indicate 
the  means  of  re-imbursement  to  the  drawee.  The  negotiable 
character  of  the  bill  is  not  prejudiced  by  any  such  mention 
of  a  fund  for  re-imbursement.10    The  following  phrases  have 

of  a  sum  certain,  which  was  "lodged  in  the  hands"  of  the  drawee  and 
"  was  the  property  of"  the  payee,  was  held  to  be  a  good  bill  not  payable  out 
of  a  particular  fund. 

'Smurr  v.  Fornian,  1  Ohio  272  (1824). 

*Harriman  v.  Sanborn,  43  N.  H.  128  (1861),  this  paper  being  without  the 
words  "  value  received"  and  plainly  intended  for  a  mere  receipt. 

3Chickering  v.  Greenleaf,  6  N.  H.  51  (1832).  So,  the  note  of  an  incor- 
porated bank  "payable  out  of  the  joint  funds  thereof  and  no  other,"  United 
States  v.  Smith,  2  Cranch  C.  C.  111. 

♦Skillen  v.  Richmond,  48  Barb.  428  (1867). 

5  Bull  i'.  Sims,  23  N.  Y.  570  (1861).  But  see,  contra,  Matthia  v.  Town  of 
Cameron,  62  Mo.  504  (1876). 

•Smith  v.  Ellis,  29  Me.  422  (1849). 

'Herriman  v.  McKee,  49  Iowa  185  (1878). 

8  Bank  of  the  United  States  v.  The  United  States,  2  How.  711,  734  (1844). 

•Griffin  v.  Weatherby,  L.  R.  3  Q.  B.  753  (1868).  "  It  is  objected,"  said  Mr. 
Justice  Leech,  "  that  it  is  not  a  bill  because  it  orders  payment  out  of  a  par- 
ticular fund  by  reason  of  the  words  'on  account  of  moneys  advanced  by 
me  for  the  Isle  of  Man  Slate  Company  ;'  but  that  appears  to  me  merely  to 
denote  the  consideration  for  the  order,  and  is  merely  an  equivalent  phrase 
to  '  value  received.'  If  the  defendant  had  accepted  generally,  would  he  not 
have  been  absolutely  hound  to  pay  on  the  first  of  August,  whether  he  had 
funds  of  the  company  in  his  hands  or  not?  Most  assuredly,  as  it  seems  to 
me,  he  would.     Therefore  thin  is  a  bill  of  exchange." 

M  By  lea  g  98;  Chittv  160;  1  Daniel  55;  1  Edwards  ?  158;  1  Parsons  44; 
Story  on  Prom.  Notes  g  2(5 ;  Kelley  v.  Brooklyn.  4  Hill  263  (N.  Y.  1S43) ;  Bank 


144  FORM THE    CONTRACT    FOR    PAYMENT. 

been  held  to  amount  to  nothing  more  than  that,  viz. :  "and 
charge  to  my  salary  account;"1  "and  charge  the  same  to 
apply  on  contract  for  building;"2  "and  charge  to  Bedford 
Road  assessment;"3  "out  of  my  share  of  the  grain;"4  "and 
charge  the  same  against  whatever  amount  may  be  due  me 
for  my  share  of  fish;"5  "and  I  will  credit  your  note  to  me 
for  the  amount."6  And  this  is  true  generally  of  bills  drawn 
against  shipments  of  goods,  whether  accompanied  by  the 
bills  of  lading  or  not.7  For  phrases  making  mention  of 
securities  or  particularizing  the  consideration,  the  reader  is 
referred  to  a  later  chapter  of  this  work. 

of  Kentucky  v.  Sanders,  3  A.  K.  Marsh.  104  (1820) ;  Smith  v.  Ellis,  29  Me. 
422  (1849);  Coursin  v.  Ledlie's  Admr.,  31  Penna.  St.  506  (1858);  Matthews 
v.  Crosby,  56  N.  H.  21 ;  MacLeod  v.  Snee,  2  Stra.  762 ;  Early  v.  McCart,  2  Dana 
414 ;  Sears  v.  Wright,  24  Me.  278  (1844)  ;  Corbett  v.  Clark,  45  Wis.  403  (1878) ; 
Hollister  v.  Hopkins,  13  Hun  210. 

Shaver  v.  West.  Un.  Tel.  Co.,  57  N.  Y.  459  (1874);  MacLeod  v.  Snee, 
supra.  But  a  similar  order  by  a  judge  upon  the  State  Treasurer  con- 
cluding "  and  charge  the  same  to  account  of  my  salary  as  judge,"  was  held 
not  to  be  a  negotiable  bill  of  exchange  in  Strader  v.  Batchelor,  8  B.  Mon. 
168  (1847). 

2 Hollister  v.  Hopkins,  13  Hun  210  (1878).  So,  Carran  v.  Little,  40  Ohio 
St.  397  (1884) ;  18  Cent.  L.  J.  118. 

3Kelley  v.  Brooklyn,  4  Hill  263. 

*  Corbett  v.  Clark,  45  Wis.  403  (1878). 

5  Redman  v.  Adams,  51  Me.  429  (1863). 

6Early  v.  McCart,  2  Dana  414  (1S34). 

'Cowperthwaite  v.  Sheffield,  1  Sandf.  416  (1849),  affirmed  3  N.  Y.  243; 
Lowery  v.  Steward,  3  Bosw.  505  (1858). 


CERTAINTY    IN    TIME    OF    PAYMENT.  145 


B.   Certainty  as  to  Time  of  Payment. 

109.  Certainty — In  General. 

110.  Indefinite  Expressions— Blanks — Omissions. 

111.  Payment  Conditional— "  When  Able" — "When  in  Funds." 

112.  Payable  "when  Realized  from  Sales" — "When  Collected." 

113.  on  Death — Marriage — Coming  of  Age. 

114.  in  Installments — On  Default  of  Interest. 

115.  on  Return  of  Papers — Completion  of  Building — Settlement  of 

Accounts — Arrival  of  Ship. 

116.  on  Public  Event — Wager. 

117.  "  on  Demand." 

118.  on  Demand — Equivalent  Expressions. 

119.  if  no  Time  Expressed. 

120.  Time  of  Payment — Memorandum — Parol  Evidence. 

§  109.  Certainty — In  General. — A  negotiable  bill  of  ex- 
change, promissory  note  or  check  must  be  payable  at  a  time 
certain.  In  many  countries  it  is  required  by  statute  that  the 
time  be  expressed  in  the  instrument.1     It  is  also  required  by 

Expression  of  the  time  of  payment  is  essential  by  statute  in  ihe  Argen- 
tine Republic  (1862  Code  Com.  Arts.  776,  916) ;  Austria  (1850  Exch.  Law  Arts. 
4,  96);  Belgium  (see  Code  Napoleon  $  111),  and  as  to  notes  I  188);  Bolivia 
(1834  Code  Com.  Arts.  362,  365,  463,  469,  and  if  no  time  be  expressed  the 
bill  is  payable  at  sight,  Art.  465) ;  Brazil  (1850  Code  Com.  Arts.  354,  426)  ; 
Chili  (1865  Code  Com.  Arts.  633,  771 — but  notes  may  be  without  expressed 
time  of  payment  and  are  then  payable  ten  days  after  date,  Art.  778) ;  Colom- 
bia (1853  Code  Com.  Arts.  384,  517,  and  if  no  time  be  expressed  in  a  note,  it  is 
payable  ten  days  after  date,  Art.  515)  ;  Costa  Rica  (1853  Code  Com.  Arts.  373, 
510,  and  if  no  time  be  expressed  in  a  note,  it  is  payable  ten  days  after  date, 
Art.  508);  Denmark  (1825  Exch.  Law  \  8);  Ecuador  (see  Spain);  France 
(Code  Napoleon  \\  110,  188) ;  Geneva  (Code  Napoleon) ;  Germany  (1848  Gen. 
Exch.  Law  Arts.  4,  96) ;  Greece  (Code  Napoleon) ;  Guatemala  (see  Paraguay)  ; 
Hayti  (Code  Napoleon) ;  Holland  (1838  Exch.  Law  Arts.  100,  208,  as  to  bills 
of  exchange,  but  not  as  to  notes)  ;  Honduras  (see  Paraguav)  ;  Hungary  (1860 
Exch.  Law  ch.  1  \\  1,  14);  Italy  (1865  Code  Com.  Arts.  "196,  273);  Mexico 
(1854  Code  Com.  Arts.  223,  447) ;  Nicaragua  (1S69  Code  Com.  Arts.  241,  312) ; 
Paraguay  (Ordc.  Bilbao  1774  ch.  1  §  2;  ch.  14  I  1);  Peru  (1853  Code  Com. 
Arts.  381,  522 — but  notes  and  certificates  of  deposit  are  payable  ten  days 
after  date,  if  no  time  be  expressed,  Art.  520) ;  Portugal  (1833  Code  Com. 
Arts.  321,  426) ;  Russia  (Exch.  L.  1832  Art.  541) ;  Salvador  (1855  Code  Com. 
Arts.  381,  510) ;  San  Domingo  (Code  Napoleon) ;  Spain  (1829  Code  Com.  Arts. 
426,  563,  and  if  no  time  be  expressed  in  a  note,  it  is  payable  ten  days  alter 
•  late,  Art.  561) ;  Sweden  and  Norway  (1851  Code  Com.  ch.  1  g  1) ;  Switzerland 
1  305  Zurich  ;  1859  Berne  ;  1863  Basle) ;  Turkey  (Code  Napoleon) ;  Uruguay 
(1865  Code  Com.  Art.  789,  but  drafts  are  payable  at  sight,  if  no  time  be  ex- 
pressed) ;  Venezuela  (1862  Code  Com.  Art.  1;  Law  II.  Art.  1).  By  the  Civil 
Code  of  Lower  Canada  (a.  d.  1867  \\  2283,  2346)  bills  and  notes  are  payable 
on  demand,  if  no  lime  be  expressed.  And  in  the  Argentine  Republic  bills 
are  payable  at  sight,  if  no  time  be  expressed  (Code  Com.  Art.  786).  If  no 
time  of  payment  be  expressed,  the  bill  or  note  is  wholly  void  as  a  commer- 
cial instrument  by  the  Code  Napoleon,  Bedarride's  Droit  Commercial,  vol. 
1  p.  108,  vol.  2  p.  392;  but  it  may  be  payable  on  demand,  76.  In  such  case 
the  phrases  a  volonte — a  presentation— toutes  fois  etquand — are  commonly  used 
as  equivalent  to  the  English  "on  demand."     An  express  time  of  payment 


146  FORM THE    CONTRACT    FOR    PAYMENT. 

some  foreign  statutes  that  such  instruments  be  made  payable 
on  certain  days  or  within  a  certain  limit  of  time.1  And  it 
was  formerly  required  by  English  statute  that  all  negotiable 
bills  or  notes  under  £5  should  be  made  payable  within 
twenty-one  days  from  their  date.2  In  the  United  States 
there  are  but  few  statutory  regulations  on  the  subject.3  In 
the  absence  of  statute  it  is  both  customary  and  advisable  to 
express  the  time  of  payment  in  the  instrument.     Usually 

is  also  indispensable  in  Germany,  Thol  W.  R.  151;  and  in  Italy  a  certain 
fixed  day  must  be  named  for  the  payment  of  notes  which  are  payable  in 
produce  (1865  Code  Com.  Art.  278). 

'By  the  Code  Napoleon  (§  129)  a  bill  of  exchange  may  be  made  payable 
at  sight  or  at  one  or  more  days,  months  or  usances  after  sight  or  date,  or  on 
a  fixed  day  or  at  a  fair.  This  is  the  law  in  Belgium,  France,  Geneva,  Greece, 
Hayti,  San  Domingo,  and  Turkey.  Likewise  in  Spain  (1829  Code  Com.  Art. 
439) ;  Costa  Rica  (1853  Code  Com.  Art.  386) ;  Hungary  (1860  Exch.  Law  eh. 
1  \  89) ;  Ecuador  (Spanish  Code)  ;  Mexico  (1854  Code  Com.  Art.  334) ;  Nicar- 
agua (1869  Code  Com.  Art.  250) ;  Portugal  (1833  Code  Com.  Arts.  321,  372). 
So,  in  Prru  (1S53  Code  Com.  Art.  399)  ;  Salvador  (1855  Code  Com.  Art.  394)  ; 
Colombia  (1853  Code  Com.  Art.  397)  except  as  to  usances;  Germany  (1848 
Exch.  Law  Art.  4),  and  in  Germany  a  bill  or  note  cannot  be  paid  in  install- 
ments (Arts.  4,  96)  by  the  law  of  1861.  In  Sweden  and  Norway  (1851  Exch. 
Law  ch  1  |  3)  bills  may  be  made  payable  at  sight  or  on  a  fixed  day  or  a 
certain  day  after  sight  or  date.  So,  in  Switzerland,  (Berne  1859  \  4;  Basle 
1863  $3)  or  at  a  fair.  Bills  and  notes  may  lie  made  payable  at  sight  or  on 
demand,  certain  days  or  months  after  sight  or  after  date,  or  on  a  fixed  day 
in  the  Argentine  Republic  (1862  Cod.  Com.  Arts.  786,  917).  In  Holland  bill's 
may  be  made  payable  at  or  after  sight  or  at  a  time  certain  (1838  Exch.  Law 
Art.  100).  In  Nicaragua  (1869  Code  Com.  Art.  312)  all  drafts  are  payable  at 
sight,  unless  expressly  payable  on  a  fixed  day  or  a  certain  time  from  date, 
but  they  cannot  be  made  payable  a  certain  time  after  sight.  In  Denmark 
(1825  Exch.  Law  \\  8,  9)  a  bill  may  be  made  payable  at  sight  or  a  certain 
time  after  sight  or  date,  or  on  a  fixed  day,  but  must  be  payable  within  three 
months,  if  drawn  in  Denmark — four  months,  if  in  the  Faro  Island — six 
months,  if  in  Iceland  or  the  West  Indies — one  year,  if  in  Guinea — and  by  the 
act  of  1843  all  bills  drawn  by  the  drawer  on  himself  must  be  payable  within 
three  months.  In  Uruguay  (1865  Code  Com.  Art.  805)  drafts  may  be  made 
payable  at  sight,  or  on  a-fixed  day,  or  a  certain  time  after  sight  or  date.  So, 
in  Venezuela  (1862  Code  Com.  Art.  16)  as  to  bills. 

2 17  Geo.  III.  c.  30,  now  repealed.  And  it  is  said,  "if  a  bill  of  exchange 
be  made  payable  at  never  so  distant  a  day,  if  it  be  a  day  that  must  come,  it 
is  no  objection  to  the  bill,"  Willes,  C.  J  ,  in  Colehan  v.  Cooke,  Willes  396. 

3In  California  "a  negotiable  instrument  may  be  with  or  without  designa- 
tion of  the  time  of  payment"  (Civ.  Code  1872  \  8091),  and  one  "  which  does 
not  specify  the  time  of  payment,  is  payable  immediately  "  [lb.  \  8099).  In 
Dakota  the  above-mentioned  provisions  of  the  California  Code  have  been 
enacted  (Rev.  Code  1877  \\  1825,  1830).  In  Georgia,  promissory  notes  must 
be  made  for  payment  "at  a  specified  time"  (Code  1873  $  2774).  In  Minne- 
sota the  time  fixed  by  statute  as  "  reasonable  "  for  a  demand  to  hold  an 
indorser  on  a  note  payable  "  on  demand  "  is  sixty  days  (1878  G.  S.  c.  23  \\ 
11,  12).  Notes  payable  on  demand  are  not  entitled  to  grace  {lb.  \  18).  In 
New  Hampshire  the  provision  as  to  "reasonable  time"  in  the  case  of  de- 
mand notes  is  the  same  as  that  of  Minnesota  (1878  G.  L.  c.  220  \  11). 


INDEFINITE    EXPRESSIONS.  147 

this  time  is  either  expressed  to  be  "on  demand"  or  in  a 
designated  number  of  days  or  months^  after  date.  Bills  of 
exchange  are  also  frequently  made  payable  "at  sight"  or  a 
certain  number  of  days  "after  sight."  This  means  in  the 
case  of  a  bill  of  exchange  at  or  after  acceptance  or  protest 
for  non-acceptance.1  In  the  case  of  a  promissory  note  it 
seems  to  be  equivalent  to  "demand."2  In  England  it  is 
now  by  statute  equivalent  in  both  cases  to  "demand."3 

Where  a  time  of  payment  is  expressed  in  a  negotiable 
instrument,  it  becomes  a  material  part  of  the  contract.  In 
such  case  it  must  be  averred  in  the  pleading  and  its  omis- 
sion will  constitute  a  fatal  variance.4  And  a  subsequent 
readiness  to  pay  is  no  defense  to  an  action  on  such  an  instru- 
ment.5 

§  110.  Indefinite  Expressions — Blanks — Omissions. — Where 
a  bill  or  note  is  for  the  payment  of  money  "  by  "  November 
1st,  it  is  due  on  that  day.6  So,  if  payable  "  on  or  by  "  sucL 
a  day;7  or  "on  or  before  "  a  day  named.8  And  where  an 
instrument  was  payable  "  on  "  a  day  certain,  a  description 

'Byles  81.  "  It  must  be  presented  for  acceptance  and  the  time  of  the  bill 
begins  to  run  not  from  the  mere  presentment,  but  from  the  presentmen 
and  acceptance,"  Story,  J.,  in  Mitchell  v.  Degrand,  1  Mason  181  (1817). 

2Byles  81;  Holmes  v.  Kerrison.  2  Taunt.  323;  Sutton  v.  Toomer,  7B.i 
C.  416;  S.  C,  1  M.  &  Ry.  125.  At  least  it  does  not  mean  on  or  after  date 
Sturdy  v.  Henderson,  4  B.  &  Aid.  592  (1821).  "On  demand,  at  sight"  is  said 
by  Bolland,  B.,  to  mean  "if  you  demand  it  and  show  it,"  Dixon  v.  Nuttall, 
•6  C.  &  P.  320  (1834)-;  S.  C  ,  1  Cromp.  M.  &  R..307. 

334  and  35  Vict.  c.  74. 

'Sebree  v.  Dorr,  9  Wheat.  558  (1824). 

'McCreary  v.  Newberry,  25  111.  496  (1861). 

6 Preston  v.  Dunham,  52  Ala.  217  (1875). 

7Massie  v.  Belford,  68  III.  290  (1873). 

8Bates  v.  Leclair.  49  Vt.  22'.)  (1877) ;  Jordan  v.  Tate,  19  Ohio  St.  586  (1869) ; 
Bfcattison  v.  Marks,  :!1  Mich.  421  (1875);  Helmer  v.  Krolick,  36  Mich.  371 
L87<  ),  in  which  case  a  note  payable  "on  or  before  three  years  from  date," 
was  held  not  to  mature  until  the  end  of  the  three  years.  A  note  payable 
''on  or  before  the  first  day  of  May  next,"  is  negotiable,  Curtis  v.  Horn,  58 
Nil.  504  (1878).  And  the  same  has  been  held  in  Pennsylvania  of  a  note 
payable  on  a  day  certain  "  or  before  if  made  out  of  the  safe  "  of  a  machine. 
Ernst  v.  Steckman,  74  Penna.  St.  13.  But  see  contra,  Charlton  v.  Reed,  til 
Iowa  166  (1883).  The  following  also  have  been  held  non-negotiable:  A 
note  payable  "  on  demand  or  in  three  years,"  with  interest  during  said  term, 
"  or  for  such  further  time  as  said  principal  or  any  part  thereof  shall  remain 
unpaid,"  Mahoney  v.  Fitzpatrick,  133  Mass.  151  (1882);  a  note  payable 
"on  or  before  two  years  from  date,"  without  interest  if  paid  within   one 


148  FOKM THE    CONTRACT    FOE,    PAYMENT. 

of  it  in  the  pleadings  as  payable  "  on  or  before  "  that  day, 
was  held  to  be  sufficient.1  But  a  bill  or  note  payable  on  a 
day  certain  "  or  at  any  time  before  maturity  "  is  not  negotia- 
ble for  want  of  sufficient  certainty.2  And  an  agreement  in- 
dorsed on  a  promissory  note  to  pay  it  "  in  any  time  within 
six  years,"  does  not  extend  the  Statute  of  Limitations,  but  it 
will  commence  to  run  from  the  date  of  the  agreement.3 

Sometimes  the  time  of  payment  is  left  blank  with  the  in- 
tention that  it  shall  be  afterwards  filled  up  by  the  holder. 
As  we  have  already  seen,  authority  to  any  bona  fide  holder 
to  fill  such  blank  is  inferred  by  law  from  the  delivery  of  the 
instrument  with  the  blank.4  But  where  this  authority  is  not 
coupled  with  an  interest,  it  cannot  be  exercised  after  the 
drawer's  death.5  Often  the  blank  left  is  a  mere  accidental 
omission  of  some  simple  word,  e.g.  "day,"  "  year,"  "month," 
"  date,"  which  can  be  readily  supplied.6  In  all  such  cases,, 
where  the  omission  and  intention  are  perfectly  plain,  recov- 
ery can  be  had  on  the  instrument  without  insertion  of  the 
word  or  words  omitted.  And  a  similar  omission  in  the 
pleading,  whereby  a  note  payable  three  months  after  date  is 

year,  Lamb  v.  Story,  45  Mich.  488  (1881) ;  a  note  payable  "  on  or  before  four 
vears,"  with  interest  payable  annually  if  convenient,  Humphrey  v.  Beck- 
with,  48  lb.  151  (1882). 

1  Morton  v.  Tenny,  16  111.  494  (1855). 

2  Hubbard  v.  Mosely,  11  Gray  170  (1858);  Way  v.  Smith,  111  Mass.  523 
(1873),  Morton,  J.,  saying:  "This  stipulation  gives  the  maker  the  right  to 
pay  the  note  at  any  time  before  its  maturity  at  his  option,  and  such  pay- 
ment would  discharge  his  contract.  It  renders  the  contract  uncertain  and 
contingent  both  as  to  the  time  of  payment  and  the  amount  to  be  paid,  and 
is  inconsistent  with  the  essential  character  of  a  negotiable  promissory  note." 
So,  too,  Stults  v.  Silva,  119  Mass.  137  (1875). 

s  Young  v.  Weston,  39  Me.  492  (1855). 

4McGrath  v.  Clark,  56  N.  Y.  34  (1874) ;  Fullerton  v.  Sturges,  4  Ohio  St.  529 
(1855);  Witte  v.  Williams,  8  So.  Car.  290  (1875);  Michigan  Ins.  Co.  v. 
Leavenworth,  30  Vt.  11  (1856). 

5  Michigan  Ins.  Co.  v.  Leavenworth,  supra. 

6Pavable  "in  the  (year)  of  our  Lord,  &c,"  Hunt  v.  Adams,  6  Mass.  519 
(1810)*;  "four  months  after  (date),"  Pearson  v.  Stoddard,  9  Gray  199 
(1857);  "six  (months)  after  date."  Conner  v.  Routh,  7  How.  176  (Miss. 
1843) ;  Nichols  v.  Frothin^ham,  45  Me.  220  (185S) ;  "  ninety  (days)  after 
date,"  Deshon  v.  Leffler,  7  Mo.  App.  595  (1879) ;  Boykin  v.  Bank  of  Mobile, 
72  Ala.  262  (1882).  But  parol  evidence  was  held  inadmissible  to  show  the 
intention  and  clear  up  the  meaning  of  a  note  payable  "  in  one  from  the  first 
of  October,  in  cattle  or  in  grain  the  first  of  January  following,"  Wainwright 
v.  Straw,  15  Vt.  215  (1843). 


INDEFINITE    EXPEESSIONS.  149 

described  as  payable  "  three  from  date,"  is  immaterial,  espe- 
cially where  the  declaration  goes  on  to  recite  that  "  the  said 
three  months  have  elapsed."1 

It  seems  that  where  a  note  dated  in  December  is  made 
payable  on  a  certain  day  in  "  December  next,"  it  may  be 
shown  by  parol  that  December  instant  was  intended.2  So, 
if  payable  "  on  the  6-9  Jan.,"  the  usage  of  indicating  the 
days  of  grace  in  this  manner  may  be  shown  by  parol.3  And 
even  such  a  phrase  as  "  when  the  lumber  is  run  to  market " 
has  been  held  capable  of  explanation  by  parol.4 

When  the  time  of  payment  is  so  wholly  uncertain  as  not 
to  be  ascertainable  from  the  instrument,  its  negotiable  char- 
acter is  thereby  lost.5  The  ambiguity,  however,  is  often 
more  apparent  than  real  and  is  in  such  cases  capable  of  con- 
struction by  the  court  without  prejudice  to  the  negotiability 
of  the  paper.  Thus,  a  bill  of  exchange  in  these  words,  "On 
the  thirty-first  of  October  pay,  &c,  *  *  *  payable  in 
Paris,  December  thirty-first,"  and  dated  at  New  York,  was 
held  to  be  payable  at  option  in  Paris,  in  December,  or  in 
New  York,  in  October,  or  else  the  provision  for  payment  in 
October  was  to  be  rejected  as  surplusage.6  A  note  payable 
"  in  good  notes  which  is  to  be  due  in  eighteen  months  "  is 
for  immediate  payment  in  notes  of  that  description.7  A  note 
dated  July  20th  and  payable  "  one  year,  August  15th,  after 
date,"  is  due  in  one  year  from  the  fifteenth  day  of  August 
after  its  date.8  In  general  a  note  which  is  not  dated,  and  is 
made  payable  a  given  time  after  date,  is  to  be  considered  as 

^assumpsic  Bank  v.  Goss,  31  Vt.  315  (1858). 

'MeCrary  v.  Caskey,  27  Ga.  54  (1859).  But  see  contra,  Wood  v.  Goodrich, 
9Yerg.  266  (1836),  where  it  was  held  that  relief  could  only  be  had  in  equity. 

"Kelsey  v.  Hibbs,  13  Ohio  St.  340  (1862). 

'Lamon  v.  French,  25  Wis.  37  (1869). 

5Thi.s  is  the  case  where  a  note  contains  a  power  to  the  payees  to  demand 
payment  "at  any  time  thev  may  deem  this  note  insecure,  even  before  the 
maturity  of  the  same,"  First  Nat.  Bank  v.  Bynum,  84  K  C.  24  (1881). 

6Henschel  v.  Mahler,  3  Den.  428  (1816),  Johnson,  J.,  dissenting. 

7  Wade  v.  Darrow.  15  Ind.  212  (1860)  ;  but  action  for  performance  by  giv- 
ing such  notes  need  not  be  deferred  until  the  expiration  of  that  time,  lb. 

8  Washington  Co.  Bank  v.  Jerome,  8  Mich.  490  (1860). 


150  FORM THE    CONTRACT    FOR    PAYMENT. 

maturing  in  such  given  time  from  the  clay  it  is  issued.1  But 
if  it  is  post-dated,  the  written  date  is  intended  and  not  the 
time  of  delivery.2 

§  111.  Payment  Conditional— "  When  Able  "— "  When  in 
Funds." — If  the  time  mentioned  for  payment  is  plainly  un- 
certain and  conditional,  the  bill  or  note  thereby  becomes 
non-negotiable.  This  is  so  in  the  case  of  a  note  payable 
"  when  my  circumstances  will  admit  without  detriment  to 
myself  or  family;"3  or  "as  soon  as  my  circumstances  will 
permit."4  But  a  note  payable  "  when  convenient"  has  been 
held  to  be  payable  in  a  "  reasonable  time "  and  therefore 
negotiable.5  So,  a  note  payable  "  as  soon  as  I  possibly  can," 
has  been  held  to  be  payable  "  presently  "  or  on  demand.6 
And  a  note  "  renewed  for  an  indefinite  time  *  *  *  the 
whole  amount  then  to  pay  when  both  parties  may  agree," 
has  been  held  to  fall  due  in  a  reasonable  time.7  And  even 
a  note  providing  "  I  am  to  have  the  privilege  of  extending 
the  time  of  payment  as  long  as  I  choose  by  paying  the  in- 
terest annually,"  has  been  held  valid  as  a  note.8     But  a  due 

'Richardson  v.  Ellett,  10  Tex.  190  (1853).  Therefore,  if  it  is  payable  "  one 
day  after  date,"  it  does  not  mature  until  the  next  day  and  cannot  be  sued 
until  the  day  after,  Raelle  v.  Moore,  58  Ga.  94  (1877). 

n  Edwards  |  171 ;  1  Parsons  49;  Powell  v.  Waters,  8  Cow.  669  (1826); 
Bumpass  v.  Timms,  3  Sneed  459  (1856).  And  such  time  of  delivery  may  he 
shown  by  parol,  Bvles  79 ;  Story  on  Bills  37;  Davis  v.  Jones,  17  C.  B.  625; 
Giles  v.  Bourne,  6  M.  &  S.  73;  Richardson  v.  Ellett,  10  Tex.  190  (1S53); 
Kenner  v.  Creditors,  10  Mart.  17  (La.  1829).  But  not  to  defeat  a  bona  fide 
holder  by  proof  of  delivery  on  Sunday,  Greathead  v.  Walton,  40  Conn.  226 
(1873). 

3Chitty  156;  Ex  parte  Tootell,  4  Ves.  372  (1798). 

♦Salinas  v.  Wright,  11  Tex.  572  (1854). 

5Works  v.  Hershey,  35  Iowa  340  (1872),  and  see  Jones  v.  Eisler,  3  Kans. 
134  (1865).  Not  so,  however,  a  note  payable  "  on  or  before  four  years  "  with 
interest  not  to  be  paid  annually  "  unless  convenient"  and  an  agreement  to 
take  other  securities  in  exchange.  Humphrey  v.  Beck  with,  48  Mich.  151 
(1882).  Nor  a  note  providing  for  indefinite  extension  by  the  payee.  Smith 
v.  Van  Blarcom,  45  Mich.  371  (1881);  Woodbury  v.  Roberts,  59  Iowa  343 
(1882).  But  the  words  "this  note  to  be  extended  if  desired  by  makers" 
have  been  held  too  indefinite  to  affect  the  note  and  could  not  be  rendered 
mure  definite  by  an  unauthorized  memorandum  by  the  holder,  Krouskop 
v.  Shontz,  51  Wis.  204  (1881). 

6Kincaid  v.  Higgins,  1  Bibb  396  (1809) ;  and  parol  evidence  of  an  agree- 
ment to  wait  until  a  certain  draft  should  be  received  from  New  Orleans  waa 
rejected  as  tending  to  vary  the  meaning  of  the  note. 

7  Ramot  v.  Schotenfels,  15  Iowa  457  (1865). 

"Maupin  v  McCormick,  2  Bush  206  (1S67). 


PAYABLE    WHEN    REALIZED    FROM    SALES.  151 

bill,  "  to  be  paid  as  wanted  fur  her  support,  and  if  no  part  is 
wanted  it  is  not  to  be  paid,"  is  clearly  contingent  and  not 
negotiable  as  a  note.1  It  is  said,  however,  that  a  note  paya- 
ble "when  able"  means  "on  demand  if  then  able;"2  and 
that  a  promise  to  pay  a  note  "  when  able  "  is  not  sufficient 
to  take  it  out  of  the  Statute  of  Limitations.3 

If  a  bill  or  note  is  made  payable  "  when  in  funds,"  it  is 
conditional  and  not  negotiable.4  So,  if  payable  "as  soon  as 
I  am  in  possession  of  funds  from  the  estate  of  B."5  A  note 
payable  "  when  in  funds  "  need  not  be  protested  until  such 
time  arrives.6  And  in  all  such  cases  the  burden  of  showing 
the  maker  or  acceptor  to  be  in  funds  is  upon  the  holder  of 
the  note  or  bill.7 

§  112.  Payable  "When  Realized  from  Sales"— "When  Col- 
lected."— If  an  order  is  made  payable  "  ninety  days  after 
sight  or  when  realized,"  this  means,  in  the  language  of  Lord 
Campbell,  C.  J.,  "when  you  are  in  funds  for  the  purpose;" 
and  such  instrument  was  held  not  to  be  a  bill  of  exchange.8 
In  like  manner,  an  instrument  payable  "  when  the  amount 
shall  be  collected "  is  a  conditional  agreement  and  not  a 
note.9  But  it  has  been  held,  with  apparent  contradiction, 
that  an  instrument  payable  in  one  year  "  and  if  not  enough 
realized  in  one  year,  to  have  more  time,"  is  payable  in  a 
reasonable  time  and  negotiable.10  So,  too,  an  instrument 
payable  "as  soon  as  collected  from  my  accounts  at  P."11 

'Gordon  v.  Rundlett,  23  N.  H.  435  (1854). 

'Veasey  v.  Reeves,  6  Ind.  406  (1855). 

8  Wilcox  v.  Williams,  5  Nev.  206  (1869). 

♦Gillespie  v.  Mather,  10  Penna.  St.  28  (1848).  See,  too,  Jackson  v.  Tilgh- 
man,  1  Miles  31  (Penna  1835). 

5 Wiggins  v.  Vaught,  Cheves  91  (1840). 

6Harrell  v.  Marston,  7  Rob.  34  (La.  1S44). 

'Mason  v.  Graff,  35  Penna.  St.  448  (1860). 

8 Alexander  v.  Thomas,  16  Q.  B.  333  (1851).     But  see  infra. 

"Corbett  v.  State  of  Georgia,  24  Ga.  287  (1858);  Henry  v.  Hazen,  5  Ark. 
401  (1842).  So  far  at  least  as  to  put  the  sum  out  of  reach  of  an  attachment 
against  the  payee.  State  v.  Burton,  11  Wis.  50.  And  such  note  cannot  ma- 
ture until  the  amount  has  been  collected,  Allen  v.  Davis,  11  Mo.  479  (1S48). 

,0Capron  v.  Capron,  44  Vt,  410  (1872). 

11  Ubsdell  v.  Cunningham,  22  Mo.  121  (1855) ;  Vaughan  v.  Dean,  32  Ga.  502 
11861) ;  Woolbright  v.  Sneed,  5  lb.  167  - 1848). 


152  FORM! THE   CONTRACT    FOR    PAYMENT. 

It  is  said  that  a  note  payable  eight  months  after  date,  "  to 
be  paid  as  soon  as  I  can  get  my  returns  from  New  Orleans 
or  at  the  above  date  at  the  furthest,"  is  sufficiently  declared 
on  as  payable  eight  months  after  date.1  And  there  seems  to 
be  a  reasonable  distinction  between  such  instruments  as  that 
last  mentioned  and  instruments  payable  only  when  realized 
or  collected.  If  payable  "  as  soon  as  can  be  realized  from 
the  property  I  have  this  day  purchased  *  *  *  to  be 
paid  in  the  course  of  the  season  now  coming,"  it  is  payable 
certainly  at  the  end  of  the  season  (although  it  may  become 
due  sooner  in  a  certain  contingency),  and  is  therefore  held 
to  be  negotiable.2  So,  too,  if  payable  six  months  after  date 
"  or  sooner  if  made  out  of  a  sale  "  of  certain  property  ;3  "or 
as  soon  as  I  can  with  due  diligence  make  the  money  out  of 
said  patent  right;"4  or  as  soon  "as  A.'s  horse  earns  the 
money  in  the  cavalry  service."5 

On  the  other  hand,  a  promise  of  payment  on  the  sale  of 
certain  property,  without  other  time  fixed,  is  not  a  promis- 
sory note.6  Neither  is  a  promise  of  payment  "as  soon  as  the 
crop  can  be  sold  or  the  money  raised  from  any  other  source,"' 
although  held  to  be  due  in  a  reasonable  time;7  or  of  pay- 
ment at  a  time  certain  with  a  stipulation  "not  to  ask  or 
expect  payment  until  the  old  mill  is  sold."8 

'Hoover  v.  Johnson,  6  Blackf.  473  (1843). 

2Cota  v.  Buck,  7  Mete.  588  (1844),  Shaw,  C.  J.,  saying:  "The  true  test  of 
the  negotiability  of  a  note  seems  to  be  whether  the  undertaking  of  the 
promisor  is  to  pay  the  amount  at  all  events  at  some  time  which  must  cer- 
tainly come." 

3 Ernst  v.  Stockman,  74  Penna.  St.  13  (1873) ;  Cisne  v.  Chidester,  85  111.  523 
(1877) ;  McCarty  v.  Howell,  24  111.  341  (I860) ;  Walker  v.  Woollen,  54  Ind. 
164  (1876). 

♦Palmer  v.  Hummer,  10  Kans.  464  (1872). 

6 Gardner  v.  Barger,  4  Heisk.  669  (1871). 

6Hill  v.  Halford,  2  B.  &  P.  413  (1801) ;  De  Forest  v.  Frary,  6  Cow.  151  (1826). 
But  in  Illinois  an  agreement  to  pay  "whenever  the  lands  in  the  late  pur- 
chase in  Iowa  Territory  shall  be  advertised  for  sale  "  has  been  held  to  be 
a  promissory  note,  Clancy  v.  Elliott,  14  ill.  456.  So,  in  Maine,  "  from  the 
avails  of  logs  bought  of  A.  B.  when  there  is  a  sale  made,"  Sears  v.  Wright, 
24  Me.  278  (1844) ;  or  "  when  I  sell  my  place  where  I  now  live,"  i.  e.  in  a 
reasonable  time,  Crooker  v.  Holmes,  65  Me.  195  (1875). 

'Nunez  v.  Dautel,  19  Wall.  560  (1873). 

•Blake  v.  Coleman,  22  Wis.  396  (1868). 


PAYABLE    OX    DEATH.  153 

§  113.  Payable  on  Death — Marriage — Coming  of  Age. — 
Commercial  paper  may  be  made  payable  on  any  event,  how- 
ever remote,  which  must  inevitably  happen  some  time  or 
other.  Thus,  it  may  be  payable  on  the  death  of  a  certain 
person;1  or  "on  demand  after  my  decease;"2  or  "one  day 
after  date  or  at  my  death."3  It  will,  however,  be  unavailing 
as  a  note,  if  delivery  is  postponed  until  then;4  or  if  the 
amount  is  rendered  uncertain  by  the  uncertain  date  of  the 
death,  as  if  payable  in  installments  to  cease  on  the  death 
of  A.  B.6 

On  the  other  hand,  marriage  is  an  uncertain  event,  which 
may  never  happen.  A  note  or  bill  cannot,  therefore,  be 
made  payable  "ninety  days  after  my  marriage;"6  or  "if  I 
am  married  in  two  months  ;"7  or  "when  A.  B.  shall  marry."8 

So,  too,  the  time  of  a  certain  person  coming  of  age  is 
certain,  but  his  living  until  then  is  uncertain.  A  note, 
therefore,  payable  "when  A.  shall  come  of  age"  is  not  nego- 
tiable.9 But  a  note  payable  to  A.  B.  "when  he  shall  come 
of  age,  to  wit,  12th  June,  1750,"  is  payable  at  all  events  on 
the  day  named,  and  therefore  negotiable.10 

§  114.  Payable  in  Installments — On  Default  of  Interest — 
After  Notice. — A  bill  or  note  may  be  made  payable  in  install- 
ments, unless  prohibited  by  statute.11  And  where  a  note  is 
given  for  $1,200,  "$200  in  each  year,"  the  installments  will 
be  due  at  the  end  of  each  year  reckoned  from  the  date  of  the 

'Cooke  v.  Colehan,  2  Stra.  1217:  Eoffey  v.  Greenwell,  2  Perry  &  D.  365; 
11  Ad.  &  E.  222. 

'Bristol  v.  Warner,  19  Conn.  7  (1848). 

8 Conn  v.  Thornton,  46  Ala.  587  (1871). 

4  Warren  v.  Durfee,  126  Muss.  338  (1879).  In  this  case  the  note  was  found 
in  a  sealed  envelope,  and  was  without  consideration  and  not  executed  as  a 
will,  and  it  was  held  to  be  wholly  without  force. 

■Chitty  156;  Worley  v.  Harrison,  3  Ad.  &  E.  669. 

*Beardslev  v.  Baldwin,  2  Stra.  1151 ;  and  see,  Pearson  v.  Garrett,  4  Mod. 
242. 

'Chitty  156;  Pearson  v.  Garrett,  4  Mod.  242  (1694). 

"Chitty  156  ;  Pearson  v.  Garrett,  4  Mod.  242  (1694). 

9Kelley  v.  He  mining  way,  13  111.  604  (1852). 

"Chitty  158;  2  Bl.  Com.  513  ;  Goss  v.  Nelson,  1  Burr.  226. 

"Wright  v.  Irwin,  33  Mich.  32. 


154  FORM — THE    CONTRACT    FOR    PAYMENT. 

note.1  So,  a  time  may  be  named  for  the  entire  payment  to 
be  made,  with  installments  in  the  meantime  at  intervals.2 

Or  a  note  may  be  made  payable  in  installments  and  the 
whole  be  made  payable  on  default  in  any  installment;"5  or, 
at  the  holder's  option,  on  default  in  the  payment  of  interest.4 
But  where  a  trust  deed  securing  several  notes  contains  a  pro- 
vision making  all  due  in  default  of  any  one,  and  this  pro- 
vision is  not  in  the  notes,  it  will  only  take  effect  so  far  as  it 
regards  the  proceeds  of  sale  under  the  trust  deed.5  So,  a 
note  may  be  made  payable  ''  in  such  portions  and  at  such 
times  as  the  directors  (payees)  may  require,"  and  it  is  then 
equivalent  to  a  note  payable  on  demand.6  This  is  a  common 
form  of  notes  given  for  insurance  premiums. 

A  note  may  also  be  payable  in  a  certain  time  after  notice.7 
In  such  case  it  is  payable  forthwith  on  notice  and  expiration 
of  time  fixed,  although  there  may  be  a  provision  "not  to 
draw  interest  unless  it  remains  three  months."8 

§  115.  Payable  on  Return  of  Papers — Completion  of  Build- 
ing—  Settlement  of  Accounts — Arrival  of  Ship. — Again,  a 
certificate  payable  "  on  return  of  this  certificate,"  is  negotia- 
ble ;9  but  not,  if  payable  on  the  return  of  another  paper,  e.  g. 

hideout  v.  Woods,  30  N.  H.  375  (1854). 

2  Ewer  v.  Meyrick,  1  Cush.  16  (1848).  This  was  a  note  for  $750  payable  in 
ten  years,  "$50  of  the  principal  to  be  paid  annually  until  the  whole  is  paid." 
The  whole  note  became  due  in  ten  years. 

3Carlon  v.  Kenealy,  12  M.  &  W.  139  (1843)  ;  Cooke  v.  Horn,  29  L.  T.  (n.  s  ) 
369.  See,  too,  German  Mut.  Ins.  Co.  v.  Franck,  22  Ind.  364  (1864) ;  May, 
&c.,  v.  City  Bank,  58  Ga.  584  (1877).  But  in  the  absence  of  express  pro- 
vision for  the  whole  to  become  due  on  default  in  installments,  parol  evi- 
dence is  inadmissible  to  show  an  agreement  to  that  effect,  Blakemore  v. 
Wood,  3  Sneed  470  (1856). 

4 Sea  v.  Glover,  1  Bradw.  335  (1878). 

5 Morgan  v.  Martien,  32  Mo.  438  (1862). 

6Colgate  v.  Buckingham,  39  Barb.  177  (1863);  Savage  v.  Medburv,  19  N. 
Y.  32;  Howland  v.  Edmonds,  24  lb.  307  (1862);  Protection  Ins.  Co.  v.  Bill, 
31  Conn.  534  (1863);  White  v.  Smith,  77  111.  351  (1875);  Goshen  Turn- 
pike v.  Hurtin.  9  Johns.  217  (1812)  ;  Dutchess  Cotton  Mfy.  v.  Davis,  14 
Johns.  244  (1817);  Gaytes  v.  Hibbard,  5  Biss.  C.  C.  100  (1869).  But  see, 
contra,  Washington  Mut.  Ins.  v.  Miller,  26  Vt.  77.  See,  also,  Stillwell  v.  Craig, 
58  Mo.  24  (1874). 

'Clayton  v.  Gosling,  5  B.  &  C.  360;  S.  C,  3  Dow.  &  R.  110. 

8Richer  v.  Voyer,  L.  R.  5  P.  C.  461  (1S74). 

9Smilie  v.  Stevens,  39  Vt.  315  (1866);  Hunt  v.  Divine,  37  111.  137  (1865) 
So,  a  receipt  for  "$2,400  paper  currency  from  A.  B.  which  I  promise  to  pay 


PAYABLE  ON  RETURN  OF  PAPERS.  155 

a  guaranty  of  another  note.1  And  a  negotiable  note,  paya- 
ble in  four  years,  "  or  upon  surrender  of  note  at  any  time 
before  maturity  to  issue  stock  for  it,"  is  not  made  non-nego- 
tiable by  the  last  provision.2 

A  negotiable  note  may  be  made  payable  when  the  payee 
shall  have  constructed  a  certain  railroad;3  or  completed  a 
certain  building  according  to  contract.4  But  a  note  given 
for  the  construction  of  a  canal,  payable  "  on  the  final  esti- 
mate of  said  section,"  is  uncertain  and  non-negotiable.5 

If  the  time  fixed  for  payment  is  the  settlement  of  an  es- 
tate, account  or  litigation,  it  is  necessarily  uncertain  and  may 
never  arrive.  In  all  such  cases  the  instrument  is  conditional 
and  not  negotiable,  e.  g.  if  payable  "  when  the  estate  of  A. 
is  settled;"6  or  "ninety  days  after  dissolution  of  the  part- 
nership and  settlement  of  its  books;"7  or  when  a  dividend 
is  declared;8  or  when  a  suit  is  determined  between  A.  and 

B.  ;9  or  "as  soon  as  you  receive  the  amount  of  my  account 
of  the  government  from  A.  B."10  But  a  note  made  payable 
January  1st,  1865,  "on  condition  that  the  banks  of  Tennes- 
see have  resumed  specie  payment  at  that  time,  if  not,  as  soon 

to  said  A.  B.  or  order  on  return  of  this  receipt,"  is  a  negotiable  note  in  New 
York,  Frank  v.  Wessels,  64  N.  Y.  158  (1876). 

'Smilie  v.  Stevens,  39  Vt.  315  (1866). 

1 Hodges  v.  Shaler,  22  N.  Y.  114  (1S60). 

'Rose  v.  S.  A.  &  M.  G.  R.  R..  31  Tex.  49  (1868).  But  the  renewal  of  such 
a  note,  made  payable  in  four  years  and  not  referring  to  the  construction  of 
the  road,  will  fall  clue  in  four  years  without  reference  to  the  completion  of 
the  railroad,  Four  Mile  V.  R.  R.  v.  Bailey,  18  Ohio  St.  208  (1868). 

♦Stevens  v.  Blunt,  7  Mass.  240  (1810);  Bristol  v.  Warner,  19  Conn.  7 
(1S48) ;  Goodloe  v.  Taylor,  3  Hawks  45S  (1825) ;  Levally  v.  Harmon,  20  Iowa 
533  (1866).  So,  "  as  soon  as  can  be  collected  out  of  the  contract,  and  if  not 
so  collected,  in  four  years,"  Smith  v.  Ellis,  29  Mo.  422  (1S49). 

5Weidler  v.  Kauffman,  14  Ohio  455  (1846).  So,  an  order  payable  "  in  in- 
stallments, $200  out  of  the  first  estimate  or  when  the  first  floor  joists  are  in, 
$200  when  the  building  is  ready  for  the  roof,"  &c,  Miller  v.  Excelsior  Stone 
Co.,  1  111.  App.  273  (1878).. 

•Husband  v.  Epling,  81  111.  172  (1876). 

7Sackett  v.  Palmer,  25  Barb.  179  (1857).     But  in  Scull  v.  Roane,  Hempst. 

C.  C.  103  (1831),  it  was  held  that  a  note  payable  on  settlement  of  accounts 
was  due  in  a  reasonable  time  and  might  be  sued  after  one  year. 

sBrooks  v.  Hargreaves,  21  Mich.  254  (1870). 
■Shelton  v.  Bruce,  9  Yerg.  24  (1886). 
10Henry  v.  Hazen,  5  Ark.  401  (1S42). 


156  FORM THE    CONTRACT    FOR    PAYMENT. 

as  they  do  resume,"  was  held  to  be  due  January  1st,  18(35, 
on  waiver  of  claim  to  payment  in  coin1. 

The  arrival  of  a  ship  is  also  an  uncertain  event,  and  an 
order  payable  at  such  time  is  not  a  bill  of  exchange;'4  for, 
being  payable  only  on  the  ship's  safe  arrival,  it  is  never  due 
if  the  ship  be  lost.3  But  it  is  said  that  the  paying  off  of  a 
king's  ship  is  a  thing  of  a  public  nature,  to  be  regarded  in 
law  as  certain  to  happen,  and  that  a  bill  payable  on  such 
event  is  unconditional.4 

§  116.  Payable  on  Public  Event — Wager. — It  sometimes 
occurs  that  the  time  of  payment  mentioned  in  the  bill  or 
note  refers  to  some  public  event  in  a  manner  that  gives  it 
the  appearance  of  a  wager  rather  than  a  bona  fide  contract. 
This  was  plainly  the  case  in  a  note  made  payable  "  on  the 
election  of  R.  B.  Hayes  to  the  office  of  President  of  the 
United  States,"  with  a  provision  that  if  he  was  not  elected 
the  note  should  be  void.5  In  like  manner  a  note,  payable 
when  the  legislature  shall  have  recognized  certain  bonds,  is 
contingent  and  non-negotiable.6  But  it  has  been  held,  in 
California,  that  a  note  payable  out  of  a  certain  appropriation, 
"  when  made,"  was  payable,  irrespective  of  the  appropriation, 
when  the  contractor  was  paid,  and  might  be  collected  on 
proof  of  the  happening  of  that  event.7  In  North  Carolina 
a  note  payable  at  a  given  time  "  after  peace  between  the 
United  States  of  America  and  the  Confederate  States  "  was 

1  Walters  v.  McBee,  1  B.  J.  Lea  364  (1878). 

:  Palmer  v.  Pratt,  2  Bing.  185  (1824).  So,  too,  if  payable  after  arrival  and 
discharge  of  coal  by  the  brig  G.,  Grant  v.  Wood,  12  Gray  220  (1858). 

3 Tucker  v.  Maxwell,  11  Mass.  143  (1814). 

*  Andrews  v.  Franklin,  1  Stra.  24;  Evans  v.  Underwood,  1  Wils.  262  (1749) ; 
but  this  decision  is  called  "  questionable,"  Chitty  159.  See,  too,  Hausoullier 
v.  Hartsink,  7  T.  R.  733;  Dixon  v.  Nuttall,  6  Carr.  &  P.  320. 

5Lockhart  v.  Hullinger,  2  Bradw.  465  (1877).  And  see,  in  other  similar 
cases,  Gordon  v.  Casey,  23  111.  70  (1859) ;  Guyman  v.  Burlingame,  36  lb.  201 ; 
Gregory  v.  King,  58  lb.  169;  Danforth  v.  Evans,  16  Vt.  538  (1844).  But  in 
Williams  v.  Smith,  4  111.  524  (1842),  it  was  held  that  an  action  would  lie 
on  a  note  payable  "  when  William  H.  Harrison  shall  be  elected  President 
of  the  United  States,"  on  proper  averment  and  proof  that  the  contingency 
had  happened. 

6  Leak  v.  Bear,  80  N.  C.  271  (1879). 

'Nagle  v.  Homer,  8  Cal.  353. 


PAYABLE    ON    DEMAND.  157 

held  to  be  void  as  a  wager  contract.1  But  such  notes  have 
been  sustained  in  other  States  as  payable  unconditionally.2 
Where,  however,  the  note  was  made  payable  "  after  the  rati- 
fication of  peace,"  &c,  the  want  of  an  averment  that  the 
event  had  happened  was  held  to  be  fatal  to  the  declaration 
on  such  note.3 

§  117.  Payable  "On  Demand." — Bills  and  notes  are  fre- 
quently made  payable  on  demand.  Except  as  otherwise  pro- 
vided by  statute,  such  notes  and  bills  are  due  immediately4 
and  without  grace.5  And  such  a  note,  in  Connecticut,  is  be- 
tween the  original  parties  due  immediately,  notwithstanding 
a  statute  of  Connecticut  fixing  the  term  of  four  months  for 
the  maturity  of  demand  notes.6  In  Georgia  demand  notes 
are  by  statute  made  due  immediately.7  In  Missouri  bills 
of  exchange,  drafts  and  orders,  payable  at  sight  or  on  de- 
mand, become  due  when  presented  for  payment;8  and  in 
North  Carolina  "when  demandable."9     This  is  also  held  to 

'McNinch  v.  Ramsay,  66  N.  C.  229  (1872).  But  see  Chapman  v.  Wacaser, 
64  N.  C.  532  (1870). 

2Gaines  v.  Dorsett,  18  La.  An.  563  (1866) ;  Mortee  v.  Edwards,  20  La.  An. 
236  (1818) ;  Brewster  v.  Williams,  2  So.  Car.  455  (1871) ;  Knight  v.  Reynolds, 
37  Tex.  204  (1872) ;  Atcheson  v.  Scott,  51  lb.  213  (1879),  overruling  Thomp- 
son v.  Houston,  31  lb.  610  (1S69).  See,  too.  Shaw  .v.  Trunsler,  30  Tex.  390 
(1867);  Nelson  v.  Manning,  53  Ala.  549  (1875).  But  in  Brewster  v.  Wil- 
liams, supra,  it  was  held  that  peace,  as  contemplated,  was  never  made  and 
the  time  for  payment  never  arrived. 

'Harris  v.  Lewis,  5  W.  Va.  575  (1872). 

'Wheeler  v.  Warner,  47  N.  Y.  519  (1872) ;  Howland  v.  Edmonds,  24  lb. 
307  (1862) ;  Herrick  v.  Woolverton,  41  lb.  591  (1870)  ;  Palmer  v.  Palmer,  36 
Mich.  487  (1877) ;  Norton  v.  Ellam,  2  M.  &  W.  461  (1837) ;  Cammer  v.  Har- 
rison, 2  McCord  246  (1822)  ;  Easton  v.  McAllister,  1  Mo.  662  (1826) ;  Cald- 
well v.  Rodman,  5  Jones  139  (1857).  And  such  a  note  will  be  regarded 
as  overdue  after  the  lapse  of  a  reasonable  time,  Herrick  v.  Woolverton,  41 
N.  Y.  581  (1870). 

5Cammer  v.  Harrison,  2  McCord  246  (1822) ;  Davenport  Bank  v.  Price,  52 
Iowa  570  (1879).  And  this  is  provided  by  statute  in  Minnesota  (1878  G.  S. 
c.  23  \  18)  and  Vermont  (1872  P.  L.  p.  91). 

6Seymour  v.  Continental  Life  Ins.,  44  Conn.  300  (1877) ;  Gen.  Stats.  343  g  2 
(1875).  Massachusetts  has  the  same  statute  (1859  G.  S.  c.  53  g  9;  Amend- 
ment of  1865  tit.  45  g  2).  Similar  statutes,  fixing  sixty  days  and  having  for 
their  object  the  protection  of  indorsers  against  stale  claims,  are  found  in 
Minnesota  (1878  G.  S.  c.  23  g  11) ;  New  Hampshire  (1878  G.  L.  c.  220  g  11). 

7 1873  Code  g  2791. 

81879  1  Rev.  Stats.  Mo.  c.  10  g  550;  G.  S.  p.  397  g  18. 

•1873  Bat.  Rev.  c.  10  g  5. 

I 


158  FORM THE    CONTRACT    FOR    PAYMENT. 

be  the  law  in  Ohio.1  It  is  said  that  when  a  note  is  payable 
on  demand,  the  maker  may  pay  it  at  any  time  without  wait- 
ing for  a  demand.2  But  a  note,  given  for  Confederate  notes 
borrowed  and  made  payable  on  demand,  cannot  be  shown 
by  parol  to  have  intended  a  payment  in  Confederate  notes 
at  any  time,  and  a  tender  without  demand  of  such  notes,  in 
March,  1863,  in  payment  of  a  promissory  note  dated  July, 
1862,  is  no  defense  to  an  action  on  the  demand  note.3 

§  118.  Payable  on  Demand — Equivalent  Expressions. — De- 
mand notes  and  bills  are  not  necessarily  payable  in  words 
"on  demand."  The  purpose  of  making  them  so  payable  may 
be  expressed  in  other  equivalent  words.  The  following  have 
been  held  to  be  equivalent  expressions  :  "When  demanded;"4 
"when  called  for;"5  "on  request"  or  "on  being  called;"6  "at 
any  time  called  for  ;"7  "at  such  times  as  A.  may  need  for  her 
support."8 

Sometimes  the  intention  is  less  clear  by  reason  of  another 
time  being  mentioned,  from  which  it  is  to  draw  inter- 
est. Thus,  a  note  payable  "  on  demand  the  first  of  January 
next,"  has  been  held  to  be  payable  immediately,  but  to  draw 
interest  only  from  January  1st.9  So,  too,  if  payable  "on 
demand  with  interest  after  six  months;"10  or  "on  demand 
*     *     *     not  to  draw  interest  during  my  life;"11  or  "on  de- 

1  Gordon  v.  Preston,  Wright  341  (Ohio  1833);  McLure  v.  Longworth,  lb. 
582.  And  in  these  cases  it  was  held  that  interest  only  ran  from  the  time  of 
such  demand. 

2 Stover  v.  Hamilton,  21  Gratt.  273  (1871). 

3 Terrell  v.  Walker,  66  N.  C.  244  (1872). 

4  Kingsbury  v.  Butler,  4  Vt.  458  (1832).  So,  a  certificate  of  deposit  subject 
to  the  depositor's  order,  with  interest  payable  on  call  at  seven  per  cent.,  or 
by  the  year  at  ten  per  cent.,  is  negotiable  and  due  immediately,  Lynch  v. 
Goldsmith,  64  Ga.  42  (1879).  But  a  note  expressing  no  time  of  payment, 
"  with  ten  per  cent,  after  maturity,"  was  held  not  to  be  payable  on  demand, 
First  Nat.  Bank  v.  Price,  52  Iowa  575  (1879). 

5Bilderback  v.  Burlingame,  27  111.  338  (1862). 

6Howland  v.  Edmonds,  24  N.  Y.  307  (1862). 

7  Bowman  v.  McChesney,  22  Gratt.  609  (1872). 

*Corbett  v.  Stonemetz,  15  Wis.  187  (1862). 

•Brett  v.  Ming,  1  Fla.  447  (1847). 

10Rice  v.  West,  11  Me.  323  (1834).  But  "  on  demand  with  interest  within 
six  months  from  date,"  means  within  six  months  at  all  events  and  sooner 
if  demanded,  Jillson  v.  Hill,  4  Gray  316  (1855). 

"Newman  v.  Kettelle,  13  Pick.  418  (1832). 


PAYABLE   ON    DEMAND    IF    NO    TIME    EXPEESSED.        159 

mand  with  interest  annually  four  months  from  date."1  But 
if  the  instrument  was  originally  payable  "on  demand  with 
interest  after  six  months,"  and  the  words  "on  demand"  have 
been  erased,  principal  as  well  as  interest  is  only  payable  after 
six  months.2 

On  the  other  hand,  the  words  indicating  immediate  pay- 
ment may  be  controlled  by  other  words  or  conditions  ren- 
dering them  nugatory.  Thus,  a  note  payable  "six  months 
after  date  *  *  *  in  current  funds  when  called  for,"  is 
only  payable  after  six  months.3  So,  a  note  payable  "on  de- 
mand" with  interest,  "  but  no  demand  is  to  be  made  as  long- 
as  the  interest  is  paid,"  is  only  payable  in  the  alternative.4 

§  119.  Payable  on  Demand  if  no  Time  Expressed. — If  no 
time  of  payment  is  expressed  (which  is  usually  the  case  in 
checks  and  frequently  so  in  promissory  notes  and  drafts), 
the  instrument  is  by  intendment  of  law  payable  on  demand, 
and  is  as  valid  and  negotiable  as  though  the  time  of  payment 
were  fully  expressed.0  And  a  lost  note  will  be  presumed  to 
have  been  payable  on  demand.6  But  if  a  note  is  post-dated 
and  no  time  of  payment  is  expressed,  it  will  be  due  on  and 
after  the  day  of  its  date.7     If,  however,  it  is  made  payable  in 

»Sbaw  v.  Shaw,  43  N.  H.  170  (1861). 

'Hobart  v.  Dodge,  10  Me.  156  (1833). 

•Davis  v.  Glenn,  72  N.  C.  519  (1875). 

♦Seacord  v.  Burling,  5  Dev.  444  (1848). 

"Bvles  81;  Chitty  173;  Boehm  v.  Sterling,  7  T.  R.  427;  Whitlock  v.  Un- 
derwood, 3  D.  &  R.  356  (1823);  S.  C,  2  B.  &  C.  157;  Down  v.  Hailing,  4  B. 
&  C.  333;  S.  C,  6  D.  &  R.  455;  S.  C,  2  C.  &  P.  11 ;  Thompson  v.  Ketcham,  8 
Johns.  192  (1811) ;  Bacon  v.  Page,  1  Conn.  404  (1815);  Lobdell  v.  Hopkins,  5 
Cow.  510  (1826);  Mason  v.  Palton,  1  Mo.  279  (1823);  Gaylord  v.  Van  Loan. 
15  Wend.  308  I  L836);  Kendall  v.  Galvin,  15  Me.  131  (1838) ;  Bnrthe  v.  Don- 
aldson, 15  La.  382  11840);  Cornell  v.  Moulton,  3  Den.  12  (1840);  Green  v. 
Drebillis,  1  Iora  552  [1848);  Freeman  v.  Ross.  15  Ga.  252  (1854);  Sackett  v. 
Spencer,  29  Barb.  180  1 1859)  ;  Pindar  v.  Barlow,  31  Vt.  529  (1859) ;  Jones  v. 
Brown,  11  Ohio  St.  60]  (1860);  Holmes  v.  West,  17  Cal.  623  (1861  |  ;  Porter 
v.  Porter.  51  Me.  370  (1862);  Keyes  v.  Fenstermaker,  24  Cal.  329  (1804): 
Huyck  v.  Meador,  24  Ark.  191  (1866);  Meador  v.  Dollar  Saw  Bank.  56  Ga. 
004  (1876)  ;  Dodd  (-.  Denny,  6  Oregon  156  (1870)  ;  Salinas  v.  Wright,  1  I  Tex. 
572;  Davenport  Bank  v.  Price,  52  Iowa  570(1879);  Libby  v.  Nikelborg,  28 
Minn.  38  (1881).  Anil  the  addition  of  the  Words  "on  demand"  does  not 
constitute  a  material  alteration  in  such  case,  Aldous  c.  Cornwell,  L.  R.  8  Q. 
B.  573  (1868). 

•Tucker  v.  Tucker,  110  Mass.  7'.'  (1875). 

'Mohawk  Hank  v.  Broderick.  10  Wend.  304,  affirmed  1.°.  Tb.  133  (1835  ; 
Goiit-h  v  St  nits.  13  Wend.  549    1835). 


160  FORM — THE   CONTRACT   FOR    PAYMENT. 

installments  and  no  time  of  payment  is  named,  it  is  not  a 
valid  negotiable  instrument.1  It  is  said  that  a  due-bill  for 
the  delivery  of  sheep  expressing  no  time  for  such  delivery 
falls  due  in  a  "reasonable  time,"  and  that  a  different  time  for 
payment  cannot  be  proved  by  parol.2 

The  rule,  that  where  no  time  of  payment  is  expressed  the 
bill  or  note  is  payable  on  demand,  applies  to  instruments 
naming  a  time  for  payment  of  interest  but  none  for  payment 
of  principal.  In  this  case  the  principal  is  payable  on  de- 
mand.3 But  the  converse  of  this  is  not  true.  Thus,  if  a 
note  be  for  five  years  "with  interest  from  date,"  the  interest 
was  held  to  be  payable  only  on  the  maturity  of  the  principal.4" 
If,  however,  it  be  "with  interest  annually,"  the  interest  will 
become  due  at  the  end  of  each  year.5  Where  a  bill  is  over- 
due and  therefore  payable  immediately,  an  agreement  to  pay 
"ten  per  cent,  on  this  bill  until  paid"  does  not  extend  the 
time  of  payment  by  implication.6  But  conversely  an  agree- 
ment for  allowance  of  interest  on  payments  of  principal, 
which  may  be  made  before  they  are  due,  is  equivalent  to  an 
agreement  giving  the  maker  the  privilege  of  paying  the 
principal  before  maturity.7 

§  120.  Memorandum  as  to  Time  of  Payment — Parol  Evi- 
dence.— A  bill  or  note  may  in  terms  be  payable  on  demand, 
with  a  memorandum  at  the  foot  of  the  instrument  that  the 
maker  shall  not  be  compelled  to  pay  it  before  a  certain  day 
named.   This  memorandum  is  part  of  the  contract  and  controls 

1  Moffat  v.  Edwards,  Car.  &  Marsh.  16  (1841). 

2 Self  v.  King,  28  Tex.  552  (1866). 

3Loring  v.  Gurnev,  5  Pick.  15  (1827) ;  Meador  v.  Dollar  Sav.  Bank,  5G  Ga. 
604  (1876) ;  Holmes  v.  West,  17  Cal.  623  (1861). 

4Koehring  v.  Muemnainghoff,  61  Mo.  403  (1875).  But  in  a  similar  oase. 
where  a  mortgage  securing  the  note  provided  for  the  payment  of  the  inter- 
est annually,  the  interest  was  held  to  become  due  according  to  the  terms  of 
the  mortgage,  Meyer  v.  Graeber,  19  Kans.  165. 

5  Walker  v.  Kimball,  22  111.  537  ;  Failing  v.  Clemmer,  49  Iowa  104  (1878). 

6Alston  v.  Wingfield,  53  Ga.  J.8,  and  parol  evidence  of  an  agreement  to 
pay  in  ten  years  is  not  admissible. 

'Crocker  v.  Green,  54  Ga.  494  (1875). 


MEMORANDUM    AS    TO    TIME.  1GL 

the  time  of  payment.1  So,  too,  an  indorsement  that  the 
whole  shall  be  due  on  default  in  paying  any  interest  coupon.2 
And  the  same  thing,  it  has  been  held,  may  be  accomplished 
by  a  contemporaneous  agreement,  though  not  written  on  the 
paper.3  But  a  verbal  agreement  between  indorser  and  in- 
dorsee at  the  time  of  the  indorsement,  made  without  any 
consideration,  for  a  postponement  of  the  time  of  payment,  is 
without  force  and  furnishes  no  excuse  to  the  holder  for  non- 
presentment  at  maturity.4 

Like  other  material  parts  of  a  bill  or  note,  the  time  of  pay- 
ment cannot  be  varied  by  parol.5  And  even  if  it  recites  as 
a  consideration  services  to  be  rendered,  it  cannot  be  shown 
by  parol  that,  although  made  payable  in  six  months,  it  was 
not  to  be  paid  until  the  services  were  rendered.6  And  even 
although  the  time  is  not  expressed  and  the  instrument  is 
payable  on  demand  only  by  implication  of  law,  it  cannot  be 
shown  by  parol  to  be  payable  at  some  other  time.7 

'Franklin  Sav.  Inst.  v.  Reed,  125  Mass.  365  (1878).  So  a  note  payable  one 
day  after  date  with  a  memorandum  indorsed,  "to  be  paid  when  A.  collects 
a  certain  note  of  B.,"  McCalla  v.  McCalla,  48  Ga.  503  (1873) ;  or  "one-half 
to  be  paid  in  twelve  months,  the  balance  in  twenty-four  months,"  Heywood 
v.  Perrin,  10  Pick.  228  (1830);  Wheelock  v.  Freeman,  13  lb.  165  (1832);  or 
"  this  note  to  be  extended  if  desired  by  makers,"  Krouskop  v.  Shontz,  51 
Wis.  204  (1881).  And  a  provision  in  a  collateral  mortgage,  securing  several 
notes  and  postponing  the  maturity  of  all  until  the  last  should  become  paya- 
ble, will  control  the  notes,  Brown'lee  v.  Arnold,  60  Mo.  79  (1875). 

■  Mayor,  &c,  v.  City  Bank,  48  Ga.  584  (1877). 

3 Round  v.  Donnel,  5  Kans.  54  (1869). 

'Michaud  v.  Lagarde,  4  Minn.  43  (I860). 

5Woodbridge  v.  Spooner,  3  B.  &  Aid.  233  (1819);  Eaton  v.  Emerson,  14 
Me.  335  (1837) ;  Graves  v.  Clark.  6  Blackf.  183  (1842).  Nor  can  parol  evi- 
dence be  admitted  to  show  a  contemporaneous  agreement  for  renewal  or 
forbearance,  Diercks  v.  Roberts,  13  So.  Car.  338  (1879).  Although  in  the 
case  of  a  note  payable  one  day  after  date  and  indorsed  in  blank,  it  was  held 
that  the  indorsement  was  only  prima  facie  a  guaranty  of  payment  and  that 
a  parol  agreement  by  the  indorser  giving  a  reasonable  time  to  collect  might 
be  shown,  Clark  v.  Merriam,  25  Conn.  578  (1857). 

6  Walker  v.  Clay,  21  Ala.  797  (1852). 

'Thompson  v.  Ketcham,  8  Johns.  192  (1811) ;  Koehring  v.  Muemminghoff, 
61  Mo.  403;  Self  v.  King,  28  Tex.  552  (1866). 


162  FORM THE    CONTRACT    FOR    PAYMENT. 


C.   Certainty  as  to  Place  of  Payment. 

121.  Place  of  Payment  should  be  Designated — Foreign  Statutes. 

122.  not  Expressed  in  Bill  or  Acceptance. 

123.  Memorandum— Blank. 

124.  Mistakes — Parol  Evidence — Presumptions. 

125.  Several  Places  Named — Pleading. 

126.  Presentment  how  far  Governed  by  Designation  of 

Place. 
128.  American  Statutes  as  to  Place  of  Payment. 

§  121.  Place  of  Payment  should  be  Designated — Foreign 
Statutes. — It  is  usual  both  in  bills  and  notes  to  designate  a 
place  of  payment.  In  bills  of  exchange  this  is  ordinarily 
expressed  in  the  drawee's  address  either  at  the  top  or  bottom 
of  the  bill.  In  promissory  notes  it  is  generally  expressed  in 
the  concluding  words  before  the  signature  by  the  phrase 
"payable  at,"  &c,  or  simply  "at,"  &c.  By  the  common  law 
it  is  not  necessary  to  the  completeness  or  negotiability  of  any 
commercial  or  negotiable  instrument.1  And  as  between  the 
immediate  parties  to  the  paper  it  is  said  to  be  "merely 
modal,  forming  no  essential  part  of  the  contract."2 

Bills  and  notes  drawn  in  foreign  countries  are  generally 
required  by  statute  to  designate  a  place  of  payment.3     And  in 

lChitty  174;  1  Daniel  99;  Story  on  Bills  g  48;  Story  on  Prom.  Notes  §  49; 
1  Edwards  §  183;  Mitchell  v.  Baring,  10  B.  &  C.  4;  Taylor  v  Snvder,  3  Den. 
150  (1846);  Bank  of  America  v.  Woodworth,  18  Johns.  315;  S.  C,  19  lb. 
391  ;  Blodgett  v.  Durgin,  32  Vt.  361  (1859) ;  Bank  of  Newbury  v.  Richards, 
35  Vt.  28f  (1862) ;  Craig  v.  Price,  23  Ark.  633  (1861) ;  Holtz  v.'Boppe,  37  N. 
Y.  634  (1868) ;  Kendall  v.  Galvin,  15  Me.  131  (1838). 

2 See  opinions  of  Spencer,  C.  J.,  in  Wolcott  v.  Van  Santvoord,  17  Johns. 
254  (1819)  ;  and  Senator  Skinner  in  Woodworth  v.  Bank  of  America,  19  lb. 
420  (1821). 

3Story  on  Prom.  Notes  \  49.  And  see  Code  Napoleon,  in  appendix.  If  no 
place  of  payment  be  expressed  in  a  bill  or  note,  it  is  payable  at  the  place 
where  it  is  made  in  the  Argentine,  Republic  (1862  Code  Com.  Arts.  7S3.  917). 
In  Denmark  (1825  Exch.  Law  \  7)  every  bill  must  indicate  its  place  of  pay- 
ment, if  other  than  at  the  drawee's  residence,  and  this  will  be  presumed  to 
be  the  place  of  payment  if  none  is  expressed.  In  Germany  (1848  Exch 
Law  Art.  4)  a  bill  of  exchange  must  indicate  its  place  of  payment,  but  the 
drawee's  address  will  suffice  for  this,  and  in  a  note,  the  place  of  making 
will  be  taken  for  the  maker's  residence  and  the  place  of  payment,  if  no 
other  is  expressed  (Art.  97).  So,  in  Austria  (1850  Exch.  Law).  In  Holland 
(1833  Exch.  Law  Art.  208)  a  note  may  be  made  payable  at  the  maker's 
residence  or  elsewhere.  In  Hungary  (I860  Exch.  Law  ch.  1  \\  1,  14)  bills 
must  express  a  place  of  payment,  and  if  several  places  are  named,  the  first 
place  named  shall  govern'  (g  18).  In  Bolivia  (1834  Code  Com.  Art.  463) 
drafts  must  express  a  place  of  payment,  although  this  is  not  required  for 
bills  of  exchange.     This  is  also  the  law  as  regards  notes,  if  they  are  payable 


PLACE    OF    PAYMENT   SHOULD    BE  DESIGNATED.  163 

conformity  with  the  original  idea  and  purpose  of  a  bill  of 
exchange  it  is  still  necessary  in  some  countries  that  it  be 
made  payable  at  a  place  different  from  that  where  it  is  drawn.1 
In  Great  Britain  promissory  notes  for  less  than  £20,  paya- 
ble to  bearer  on  demand,  must  be  made  payable  where  they 
are  issued,  but  may  be  also  payable  elsewhere.2  It  is  also 
provided  by  statute,  in  Great  Britain,  that  Bank  of  Eng- 
land notes  shall  be  payable  only  at  the  bank  in  London, 
unless  specially  made  payable  at  a  branch  bank,  and  that 
the  notes  of  its  branch  banks  shall  be  made  payable  where 

at  any  other  place  than  the  maker's  residence  (Art.  469).  In  Brazil  hills 
and  notes  must  indicate  the  place  of  payment  (1850  Code  Com.  Arts.  354, 
426).  In  Chili  hills  of  exchange  must  indicate  the  place  of  payment,  if 
other  than  the  residence  of  the  drawee  (1865  Code  Com.  Art.  633) ;  likewise 
drafts  and  notes,  if  payable  otherwise  than  at  the  place  where  made  (Art. 
771).  In  Italy  bills  and  notes  must  indicate  the  place  of  payment  (1865 
Code  Com.  Arts.  196,  273).  So,  in  Mexico,  all  bills,  notes  and  drafts  (1854 
Code  Com.  Arts.  223,  447).  So,  in  Nicaragua,  bills  of  exchange  and  notes 
(1869  Code  Com.  Arts.  241,  316).  So,  in  Honduras,  Guatemala  and  Paraguay 
(Ordc.  Bilbao  a.  d.  1774  ch.  13  |  2;  eh.  14  \  1);  In  Spain  (1829  Code  Cum. 
Art.  563)  drafts  and  notes  must  indicate  the  place  of  payment,  although  the 
statute  makes  no  such  requirement  for  hills  of  exchange.  So,  too,  in 
Colombia  (1853  Code  Com.  Art.  517);  Salvador  (1855  Code  Com.  Art.  510) ; 
Uruguay  (1865  Code  Com.  Art.  789).  In  Lover  Canada  (1867  Civil  Code  | 
2283)  it  a  bill  does  not  indicate  its  place  of  payment  it  is  payable  generally. 
In  Switzerland  (Berne  1859  \  3)  a  bill  of  exchange  must  indicate  its  place 
(if  payment,  which  may  be  done  in  Zurich  (1805  \  1)  and  Basle  (1863  \  3)  by 
the  drawee's  address,  but  in  Berne  (1859  \  3)  both  address  and  place  of  pay- 
ment are  necessary.  If  no  place  is  mentioned  in  a  promissory  note  the 
place  of  making  is  the  place  of  payment  (Basle  1863  \  88  ;  Berne  1859  \  12). 
In  Portugal  (1833  Code  Com.  Arts.  427,  428)  a  promissory  note  may  be  made 
payable  at  the  maker's  residence  or  elsewhere,  but  in  the  latter  case  it 
receives  the  qualities  of  a  bill  of  exchange  only  by  its  transfer  from  one 
place  to  another.  In  Sweden  and  Norway  (1851  Exch.  Lawch.  1  $$  1,  2)  bills 
may  be  made  payable  at  the  drawee's  residence  or  elsewhere,  and  must  ex- 
press the  place  of  payment,  but  the  drawee's  address  will  suffice  for  this. 
In  Venezuela  (1862  Code  Com.  Art.  1)  bills  of  exchange  must  express  a  place 
of  payment. 

'A  bill  of  exchange  must  be  payable  in  a  different  place  from  that  where 
il  is  drawn  in  Belgium  (Code  Napoleon  \  110) ;  Bolivia  (1834  Code  Com.  Art. 
349 i ;  ( 'hili  (1865  Code  Com.  Art.  637)  ;  Colombia  (1853  Code  Com.  Art.  387) ; 
Coda.  Rica  1853  Code  Com.  Art.  376) ;  Ecuador  (Spanish  Code)  ;  France  (Code 
Napoleon  \  110)  ;  Geneva  (Code  Napoleon) ;  Greece  (Code  Napoleon) ;  Hayti 
(Code  Napoleon) ;  Holland  (1838  Exch.  Law  Art.  100) ;  Italy  (1865  Code  Com. 
Art.  196)  ;  Mexico  (1854  Code  Com.  Art.  323);  Portugal  (1833  Code  Com.  Art. 
321  I ;  Salvador  (1X55  Code  Com.  Art.  384)  ;  Spain  (1829  Code  Com.  Art.  429). 
In  Peru  (1853  Code  Com.  Art.  385)  it  is  merely  an  evidence  of  debt,  it  not 
made  payable  at  a  different  place  from  its  date.  In  Switzerland  (Baale  1863 
I  5 ;  Berne  1859  §  5)  a  bill  may  be  payable  where  it  is  drawn,  but  the  drawer 
can  only  draw  on  himself  at  another  place  {\  6).  In  Germany  the  drawer 
of  a  bill  of  exchange  can  only  be  the  drawee,  if  it  is  made  payable  at  a 
-different  place  from  that  of  its  date  (1S48  Exch.  Law  Art.  6). 

27  Geo.  IV.  c.  6  \  10. 


164  FORM — THE    CONTRACT    FOR    PAYMENT, 

they  are  issued.1  All  bills  or  notes  drawn  by  co-partner- 
ships or  corporations  of  more  than  six  persons  were  required 
formerly  to  specify  the  place  of  payment,  and  that  place  not 
to  be  in  London  or  within  sixty-five  miles  of  London,  ex- 
cepting, however,  bills  of  £50  and  upwards  payable  at  some 
period  after  date  or  sight,  drawn  by  such  copartnerships  or 
corporations  carrying  on  business  more  than  sixty-five  miles 
from  London.2  The  restriction  as  to  the  amount  was  after- 
wards done  away  by  a  statute  which  empowered  other  cor- 
porations and  copartnerships  of  more  than  six  persons  to* 
carry  on  business  in  London,  provided  they  should  not  issue 
bills  or  notes  at  not  less  than  six  months.3  But  this  restric- 
tion also  has  now  been  removed.4 

§  122.  Place  not  Expressed  in  Bill  or  Acceptance. — Where 
no  place  of  payment  is  named  in  a  bill  or  note,  it  is  under- 
stood to  be  payable  at  the  residence  of  the  drawee  of  the  bill 
or  the  maker  of  the  note.5  And  in  such  case  a  lawful  tender 
can  only  be  made  to  the  holder  personally  or  at  such  resi- 
dence.6 Where  a  bill  is  made  expressly  payable  at  the 
drawer's  own  house,  this  is  said  to  raise  a  presumption  that 
it  is  accommodation  paper.7  As  has  been  more  fully  consid- 
ered elsewhere,  the  contracts  of  drawer,  acceptor  and  indorser 
are  so  many  distinct  contracts.  From  this  it  follows  that  if 
default  is  made  in  acceptance  or  payment  of  a  bill  of  ex- 
change at  the  place  on  which  it  is  drawn,  the  contract  of  the 
drawer  makes  him  liable  for  its  payment  at  the  place  where 
it  was  drawn.8 

»3  &  4  Wm.  IV.  c.  98  gg  4,  6. 

27  Geo.  IV.  c.  46  §1  (a.  d.  1825). 

33  &  4  Wm.  IV.  c.  83  \  2;  3  &  4  Wm.  IV.  c.  98  U  2,  3.  By  this  latter 
act  a  banking  partnership  of  more  than  six  persons  in,  or  within  six  miles 
of,  London  could  not  accept  a  bill  drawn  on  it  at  less  than  six  months,  Bank 
of  England  v.  Anderson,  3  Bing.  N.  C.  589. 

4  7  &  8  Vict.  c.  32  I  26. 

5Chitty  174;  1  Daniel  99;  Story  on  Bills  §  48;  Mitchell  v.  Baring,  10  B.  & 
C.  4 ;  S.  C,  4  Car.  &  P.  35  (1829). 

6 Collins  v.  Tabatier,  19  La.  An.  299. 

'Byles  90;  Sharp  v.  Bailey,  9  B.  &  C.  44;  S.  C,  4  M.  &  R.  4. 

8Freese  v.  Brownell,  6  Vroom  285  (1871);  Story  on  Confi.  Laws  \  314. 
This  is  also  the  rule  as  to  tbe  indorser's  contract,  Potter  v.  Brown,  5  East 


PLACE  OF  PAYMENT  IN  MEMORANDUM.       165 

If  a  place  of  payment  is  named  in  a  bill,  the  acceptance 
in  blank  is  a  contract  to  pay  at  that  place.  If  no  place  be 
named,  tke  acceptance,  like  the  contract  of  one  who  makes 
a  note,  is  to  pay  generally.  An  acceptor  may,  however, 
qualify  and  limit  his  contract  to  one  for  payment  at  a  par- 
ticular place.  This  he  may  do  accepting  "  payable  at,"  &c. 
or  simply  by  adding  his  address  to  his  signature.1  But  in 
England,  an  acceptor  must  now  accept  a  bill  specially  paya- 
ble at  a  specified  place  "  only  and  not  elsewhere,"  in  order 
to  qualify  and  limit  his  liability  to  payment  at  such  place.2 

§  123.  Place  of  Payment  in  Memorandum — Blank. — The 
place  of  payment  is  frequently  expressed  by  a  memorandum 
printed  or  written  at  the  foot  of  the  note  or  bill.  A  mere 
memorandum  of  this  sort,  intended  for  the  direction  of  the 
holder,  is  not  a  part  of  the  instrument.3  This  must,  how- 
ever, depend  in  a  measure  on  the  intention  and  the  circum- 
stances of  its  making ;  when  it  was  written  and  with  what 
intention,  are  questions  of  fact  for  the  jury.4  And  it  has 
been  held  that  the  addition  of  such  a  memorandum  is  a 
material  alteration  discharging  an  accommodation  indorser, 
although  made  by  the  maker  after  receiving  the  note  from 
the  indorser  and  before  discounting  it.5     When  the  memo- 

124;  Powers  v.  Lynch,  3  Mass.  77;  Prentiss  v.  Savage,  13  76.  20;  Hicks  v 
Brown,  12  Johns.  142. 

1  Chitty  175;  1  Pardessus  354. 

sl  &  2  Geo.  IV.  c.78;  Byles  90;  Chitty  175;  Selby  v.  Eden,  3  Bing.  611; 
S.  C,  11  Moore  511 ;  Fayle  v.  Bird,  6  B.  &  C.  531 ;  9  D.  &  R.  639.  For  con- 
structions of  the  act  of  1  &  2  Geo.  IV.  c.  78,  see  Rovve  v.  Young,  2  Brod. 
&  B  liio:  Siggara  v.  Nicholls,  Bail  Court  H.  T.  1839,  3  Jur.  34.  See,  also, 
notes  g  126  infra. 

3Byles  90;  American  Nat.  Bank  v.  Bangs,  42  Mo.  450(1868).  See,  too, 
Bank  of  America  v.  Woodworth,  18  Johns.  315;  reversed,  19  Johns.  391. 
And  see  contra,  Tuckerman  v.  Hartwell,  3  Me.  147  (1824),  where  the 
memorandum  was  made  by  the  acceptor  at  the  time  of  the  acceptance. 
And  it  seems  that  even  in  England  it  is  not  necessary  to  make  presentment 
at  the  place  designated  in  such  memorandum,  Price  v.  Mitchell,  4  Campb. 
200;  Exon  v.  Russell,  4  M.  &  S.  506;  Williams  v.  Waring,  10  B.  &  C.  2 ;  S.  C, 
5  M  <fc  R.  9.  But  such  a  presentment  is  sufficient,  Kent,  C,  in  Woodworth 
v.  Bank  of  America,  19  Johns.  411  (1821). 

*  Tuckerman  v.  Hartwell,  mpra. 

'Woodworth  ;-.  Bank  of  America,  19  Johns.  391  (1821),  reversing  Bank  of 
America  v.  Woodworth,  18  Johns.  315.  It  is  to  be  observed  that  Chancellor 
Kent,  in  the  appellate  court,  sustained  by  an  elaborate  dissenting  opinion 
the  judgment  of  Spencer,  C.  J.,  in  the  court  below. 


166  FORM THE    CONTRACT    FOR    PAYMENT. 

randura  is  printed  like  the  rest  of  the  note,  although  below 
the  signature,  it  is  held  to  be  part  of  it.1 

Sometimes  a  blank  is  left  for  the  place  of  payment.  When 
delivered  by  the  maker  in  this  condition,  authority  to  fill  it 
is  implied  as  in  case  of  other  blanks,  and  a  bona  fide  holder 
may  fill  the  blank  with  such  place  as  seems  most  conve- 
nient.2 

§  124.  Mistakes — Parol  Evidence — Presumptions. — If  the 
place  is  incorrectly  named,  it  may  be  corrected.3  It  is  said 
that  where  no  place  is  mentioned,  the  parties  may  agree 
upon  a  place  by  parol.4  But  parol  evidence  is  not  admissi- 
ble to  show  a  contemporaneous  agreement  as  to  a  place  of 
payment  and  that  the  same  was  omitted  by  mistake  or 
fraud.5 

lTurnbull  v.  Thomas,  1  Hughes  C.  C.  172  (1875).  And  in  such  a  case  a 
special  presentment  at  that  place  has  been  held  necessary  in  England,  Tre- 
cothick  v.  Edwin,  1  Stark.  468.  And  a  printed  memorandum  in  blank  on 
the  back  of  a  railroad  bond,  referred  to  in  the  body  of  the  instrument  as  left 
to  be  filled  in  with  a  place  of  payment  by  the  president,  must  be  so  filled 
before  the  bond  can  become  negotiable,  Parsons  v.  Jackson,  9  Otto  434 
(1878). 

2Redlich  v.  Doll,  54  N.  Y.  234  (1873) ;  McGrath  v.  Clark,  56  lb.  34  (1874) ; 
Waggoner  v.  Eager,  8  Hun  142  (1876) ;  Kitchen  v.  Place,  41  Barb  465 
(1864) ;  Marshall  v.  Drescher,  68  Ind.  359  (1879) ;  Gillaspie  v.  Kelley,  41  lb. 
158  (1872) ;  Shepard  v.  Whetstone,  51  Iowa  457  (1879).  And  a  blank  accept- 
ance may  he  filled  in  payable  at  a  particular  place,  Todd  v.  Bank  of  Ken- 
tucky, 3  Bush  626  (1868).  But  where  no  blank  has  been  intentionally  left, 
the  insertion  of  a  place  of  payment  in  a  bill  of  exchange  or  promissory  note 
is  an  alteration  which  makes  it  void,  Simpson  v.  Stackhouse,  9  Penna.  St. 
186  (1848);  Morehead  v.  Parkersburg  Nat.  Bank.  5  W.  Va.  74;  McCoy  v. 
Lockwood,  71  Ind.  319  (1880).  In  Marshall  v.  Drescher,  68  lb.  359,  the 
blank  space  followed  the  printed  words  "payable  at."  Where  the  amount 
is  determinable  by  the  place  of  payment,  which  is  to  be  indorsed  on  a 
corporation  bond  by  its  president,  the  blank  left  for  that  purpose  in  a 
printed  indorsement  signed  by  him,  cannot  be  filled  without  special  author- 
ity, Parsons  v.  Jackson,  9  Otto  434  (1878). 

3Bank  of  Missouri  v.  Vaughan,  36  Mo.  90  (1865).  In  this  case  the  Bank 
of  the  State  of  Missouri,  at  St.  Louis,  was  held  to  be  intended  by  the  "  Bank 
of  Missouri,  at,"  &c.     See,  too,  Stix  v.  Matthews,  63  Mo.  371  (1876). 

4Meyer  v.  Hibsher,  47  N.  Y.  265  (1872);  Pearson  v.  Bank  of  Metropolis, 
1  Pet.  89  (1828).  in  this  case  it  is  said  by  Marshall,  C.  J. :  "  This  is  not  an 
attempt  to  vary  a  written  instrument.  The  place  of  demand  is  not  ex- 
pressed on  the  face  of  the  note,  and  the  necessity  of  a  demand  on  the  per- 
son when  the  parties  are  silent,  is  an  inference  of  law,  which  is  drawn  only 
when  they  are  silent.  A  parol  agreement  puts  an  end  to  this  inference  and 
dispenses  with  a  personal  demand." 

5Specht  v.  Howard,  16  Wall.  564  (1872);  Spitler  v.  James,  32  Ind.  202 
(1869) ;  Pierce  v.  Whitney,  29  Me.  188  (1848). 


SEVERAL    PLACES    NAMED.  167 

Neither  can  the  place  of  date  be  assumed  to  be  the  place 
of  payment  in  the  absence  of  other  express  provision.1  And 
making  a  note  negotiable  at  a  certain  place  is  not  the  same 
thing  as  making  it  payable  there.2 

§  125.  Several  Places  Named — Pleading1. — A  bill  or  note 
may,  however,  be  made  payable  at  one  of  two  or  more  places, 
and  in  such  case  the  maker  has  the  choice  of  place  unless  ex- 
pressly given  to  the  holder.3  But  where  it  is  made  payable  "at 
any  bank  in  Savannah,"  or  "at  either  bank  in  Boston,"  present- 
ment at  any  bank  there  is  sufficient.4  And  in  such  case  the 
holder  need  not  give  notice  to  the  maker  where  he  will  present 
it.5  Where  a  note  was  made  payable  either  in  Colorado  or 
Nevada,  the  option  thus  left  as  to  the  place  of  payment  was 
held  to  defeat  the  construction  of  the  instrument  as  a  Nevada 
contract  governed  by  the  Nevada  statute  of  limitations.6 

Care  should  be  observed  as  to  the  description  of  the  note  or 
bill  in  the  pleadings  in  this  respect.  Thus,  it  has  been  held 
to  be  a  variance,  if  a  corporation  note,  dated  in  Chicago  and 
payable  "at  the  office,"  be  described  in  the  declaration  as 
payable  at  the  Cook  county  office,  there  being  two  offices  and 
the  one  not  in  Cook  county  having  been  intended.7  Where 
a  bank  is  named  as  the  place  of  payment,  this  does  not,  it 

^ightner  v.  Will,  2  Watts  &  S.  140  (1841) ;  Taylor  v.  Snyder,  3  Den.  145 
(1845) ;  Blodgett  v.  Durgin,  32  Vt.  361  (1859) ;  Anderson  v.  Drake,  14  Johns. 
114;  Bank  of  America  v.  Woodworth,  18  lb.  322;  Pierce  v.  Whitney,  29  Me. 
188  (1848) ;  S.  C,  22  76.  113.  From  such  date,  however,  it  has  been  inferred 
that  the  maker  contemplated  payment  at  that  place,  Stewart  v.  Eden,  2 
Caines  121  ;  Bullard  v.  Thompson,  35  Tex.  313  (1871) ;  Orcutt  v.  Hough,  54 
N.  H.  472  (1874);  and  that  such  was  prima  facie  the  place  of  payment, 
Picketts  v  Pendleton,  14  Md.  320  (1859). 

2 Pearson  v.  Bank  of  Metropolis,  1  Pet.  89  (1828).  Neither  will  it  render 
a  note  non-negotiable  elsewhere  to  make  it  "  negotiable  and  payable  at  B.," 
Schoharie  Co.  Bank  v.  Bevard,  5.1  Iowa  257. 

•Womack  v.  Jenkins,  17  Ind.  137  (1861);  Wilcox  v.  Williams,  5  New  206 
(1871) ;  and  see,  Pollard  v.  Herries,  3  Bos.  &  P.  335  (1803). 

*Boit  v.  Corr,  54  Ala.  112  (1875) ;  Allen  v.  Avery,  47  Me.  287  (1859). 

"Allen  v.  Arery,  47  Me.  287  (1859) ;  Brickettv.  Spalding,  33  Vt.  107  (1860), 
unless  the  maker  select  a  particular  bank  and  notify  the  holder,  or  call 
upon  the  holder  to  make  a  selection.  "At  any  bank  in  Boston,"  refers,  hovv- 
ever,  only  to  incorporated  banks,  Way  v.  Butterworth,  106  Mass.  75  (1870) : 
S.  C,  108  Mass.  509  (1871). 

6  Wilcox  v.  Williams,  5  Nev.  206  (1871). 

'Childs  v.  Laflin,  55  111.  156  (1870). 


L68  FORM — THE    CONTRACT    FOB    PAYMENT, 

seems,  mai;e  the  bank  an  agent  for  collection  of  the  money.1 
But,  in  the  language  of  Chief  Justice  Marshall,  "by  making 
a  noio  negotiable  in  bank  the  maker  authorizes  the  bank  to 
advance  on  his  credit  to  the  owner  of  the  note  the  sum  ex- 
pressed on  its  face." : 

It'  a  bill  or  note  is  made  payable  at  a  particular  place,  the 
failure  to  sol  this  out  in  the  declaration  constitutes  a  vari- 
ance.9 In  Alabama,  nevertheless,  a  different  rule  prevails 
bv  statute  unless  a  bill  or  note  is  made  payable  at  a  certain 
place  and  there  only/ 

§  126,  Presentment,  how  far  Governed  by  Designation  of 
Place, — It  was  formerly  laid  down  as  the  rule  that  the  place 
of  payment  mentioned  in  a  bill  or  note  governed  both  the 
matter  of  presentment  and  of  pleading;6  ami  that  if  the  bill  or 
note  mentioned  the  place  of  payment,  presentment  there  was 
necessary  to  hold  the  drawer  or  maker/'  This  rule  was  sub- 
sequently extended  by  the  House  of  Lords  to  bills  payable 
generally  on  their  face,  but  accepted  payable  at  a  particular 
place."  This  decision  led.  in  England,  to  the  passage  o(  an 
A.;  of  Parliament,  already  mentioned,  which  provides  that 
"it"  any  person  shall  accept  a  bill  of  exchange  payable  at  the 
house  o\   a  banker  or  other  place  without  further  expression 

1  Hills  t    Place,  48  H   Y.520    >  Evans,  5  Bush  88 

\  v  seems  to  have  boon  hold  in  Griffin  v.  Rioe,  1  Sill 

(1851 

v  .  C   ion  Bank,  -1  Crancfa 

38,24111.168;]  Campb.  468;  Sebree  «.  Dorp, 

9  \fi  3  (1824).    S  e  setting  out  of  a  payment  not 

named  in  the  bill,  Exon  :.  Russell.  4  M    &  S.  '  316);  orof  the  wrong 

yable  "at  the  office"  and  there  woro 
offices  ch  the  one  not  ii  -      signated  in  the  pleadings,  Chi  Ids 

370). 
•A       -  37  M   s  -         \  -'         -     Mont- 

idant  being  left  to  disprove 
emand  as  matfc  -  ictofl872        -       exchange 

and         s  in  money  at  a  bank  or  at  a  certain  place  therein  desig- 

nated, are  governed  commercial  law,  Oates  .    Nal   Bank,  U  0  I 

379 

■1>      -  Saunderson   a  Bowes,   U   E  si    500;   Roche  ■.Campbell    ° 

Cam| 

•Bi     •  Mather, 8 Bing.  214;S,C  1M        kS      189    S.  C,  2  G. 

&  J.  25  i"      s,8     impb.  168. 

•Rowet    V    ing   SBn   I  &B    g   -    %    1820      S.  G,  2  Bligh  891, 


PLEADIJ  169 

in  his  acceptance,  such  acceptance  shall  be  deemed  and  taken 
to  be,  to  all  intents  and  pur;    -  -       general  accepts 
Bach  bill ;  but  it*  the  acceptor  shall,  in  his  acoeptai 

sa  that  he  accepts  the  bill  payable  at  the  banker's  house 
ther  place  only  and  not  othtm  se    r  ek  .  such 

eeptance  shall  be  deemed  and  taken  to  be.  to  all  intents  and 
purposes,  a  qualified  acceptance  of  such  bill,  and  the  acceptor 

shall  not  be  liable  to  pay  the  said  bill,  except  in  default  of 
payment,  when  such  payment  shall  have  been  demanded  at. 
such  banker's  house  or  other  place."1  This  act  extends, 
however,  only  to  actions  against  the  acceptor.9  To  hold  the 
drawer,  presentment  at  the  place  of  payment  named  in  the 
bill  is  still  necessary  in  England.3  This  is  likewise  the  Eng- 
lish rule  as  to  the  liability  o{  the  maker  o(  a  promissory 
note,  which  mentions  a  place  o(  payment,  the  statute  o(  1 
and  2  Geo.  IV.  having  no  application  to  notes.4  A  mere 
memorandum,  however,  at  the  foot  o{  a  bill  or  note,  though 
proved  to  have  been  there  before  the  signatures,  has  not  the 
same  effect  as  mention  oi'  the  place  o\'  payment  in  the  body 
oi  the  instrument,  and  presentment  at  the  plaee  named  in 
Such  memorandum,  is  not  necessary  ;*  even  though  the 
memorandum  be  printed.'     But  the  separation  of  such  words 

'Cliill.v  i  ~         v:ul   the   :. 

by  the  draw*  -  i  bill  drawn,  payable  in 

Ion  and  accepted  ; 
out  the  statu i  -  '   .,  S.  C,  9  1*  &   R 

Chittv  176 ;  e.  Mather,  S 

A  M 

Cubley,  2  Car,  A  M    151  .  S.  CL,  \  1'.    i    87 
'Chittv  17f>:  Saul  p.  1  El. 

pwood,  _  Taunt,  61 ;  GarneU  r.  W 
'Bj  lea  216;  Chittj  - 

How<  -  \  s  rilliama 

•.Waring,  10  B  a  nblin  i>.  Daitnell,  12  M   a  w    S        Spindler  e. 

;  1  \         -  \ 

'Bylea  90;  Chitty  177;   I  hell,  4  Campb.  20      l'\   a  ...   -     . 

4  M        -  Williams  r.  Waring,  I  -  W 

I  Campb 
Judge,  2  Hi'  -       Barretto,   - 

Btifficien  sentment  *l  such  pi         a        tpinion  <•:  I 

in  Woodworth  ;    Bank  of  America,  19  Join  - 

•Chittv  177     l':<    rahick    .  1"    n       1  Stark, 


170  FORM — THE    CONTRACT    FOR,    PAYMENT. 

from  the  body  of  the  note  by  a  period,  e.  g.  "At  M.  L.,"  does 
not  make  them  a  mere  memorandum,  when  they  are  part 
of  the  note  and  necessitate  presentment  there.1  Presentment 
at  the  place  of  payment  mentioned  in  the  bill  or  note  being, 
as  we  have  seen,  requisite  in  England,  it  should  be  averred 
in  the  pleading  to  have  been  so  made;2  although  this  has 
been  questioned  in  some  earlier  cases.3 

§  127.  The  American  rule  differs  from  the  English  one 
both  as  to  presentment  and  pleading.  That  is  to  say,  pre- 
sentment at  the  place  named  for  payment  in  a  bill  or  note  is 
not  necessary  in  order  to  charge  maker,  drawer  or  acceptor.4 
From  this  it  follows  that  it  is  unnecessary  to  aver  such  present- 
ment in  the  declaration  against  such  parties.5  Presentment 
at  the  place  named  is,  however,  often  necessary  to  the  re- 
covery of  costs  and  damages  against  any  party.6  And  if  the 
maker  or  acceptor  can  show  that  any  injury  has  been  caused 
him  by  failure  to  make  presentment  and  demand  payment  at 
the  place  mentioned  in  the  instrument,  it  seems  that  he  may 
avail  himself  of  such  matter  of  defense.7     And  nothing  in 

Zander  Donckt  v.  Thellerston,  8  C.  B.  812  (1849). 

2Saunderson  v.  Bowes,  14  East  498 ;  Dickinson  v.  Bowes,  16  lb.  108 ;  Bowes 
v.  Howe,  5  Taunt.  30;  Ambrose  v.  Hopwood,  2  76.61;  Callaghan  v.  Aylett, 
3  lb.  397;  Gammon  v.  Schmoll,  5  lb.  314;  Rowe  v.  Young,  2  Brod.  &  Bing. 
165  (1820) ;  Cowie  v.  Halsall,  4  B.  &  Aid.  197  (1821).  At  least  as  to  promis- 
sory notes,  Chitty  404. 

sSaunderson  v.  Judge,  2  H.  Bl.  509;  Fenton  v.  Goundry,  13  East  459; 
Lyon  v.  Sundius,  1  Campb.  423;  Head  v.  Sewell,  1  Holt  363;  Rowe  v.  Wil- 
liams, lb.  363  n. 

♦Bank  of  U.  S.  v.  Smith,  11  Wheat.  171  (1826);  Wallace  v.  McConnell,  13 
Pet.  136  (1839) ;  Foden  v.  Sharp,  4  Johns.  183  (1809) ;  Wolcott  v.  Van  Sant- 
vord,  17  lb.  248  (1819) ;  Caldwell  v.  Cassidy.  8  Cow.  271  (1828) ;  Watkins  v. 
Crouch,  5  Leigh  522  (1834);  Bowie  v.  Duval],  1  Gill  &  J.  175;  Buggies  v. 
Patton,  8  Mass.  480;  Herring  v.  Sanger,  3  Johns.  Cas.  71 ;  Hnxtun  v.  Bishop, 
3  Wend.  13  (1829) ;  Blair  v  Bank  of  Tennessee,  11  Humph.  88;  McNairy  v. 
Bell,  1  Yerg.  5i>2  (1831);  Mulherrin  v.  Hannum,  2  lb.  81  (1821);  V\  eed  v. 
Van  Houten,  4  Halst.  189  (1827) ;  Fuller  v.  Dingman,  41  Iowa  506  (1875). 

5Wolcott  v.  Van  Santvord,  17  Johns.  248  (1819) ;  Carley  v.  Vance,  17  Mass. 
389 ;  Weed  v.  Van  Houten,  4  Halst.  189  ( 1827).  And  see  remarks  of  Thomp- 
son, J.,  to  the  same  effect  in  Bank  of  United  States  v.  Smith,  11  Wheat.  175. 

"Caldwell  v.  Cassidy,  8  Cow.  271  (1828);  Wolcott  v.  Van  Santvord,  17 
Johns,  218  (1819) ;  Fuller  v.  Dingman,  41  Iowa  506  (1875). 

7Nichols  v.  Pool,  2  Jones  23  (1854).  And  in  Louisiana  such  failure  is  no 
defense  without  proof  of  special  damage,  McCalop  v.  Fluker,  12  La.  An.  551 
[V  .7). 


AMERICAN  STATUTES  AS  TO  PLACE  OF  PAYMENT.         171 

this  section  is  to  be  understood  as  affecting  the  rights  of  an 
indorser  to  require  presentment  at  the  place  designated.1 

§  128.  American  Statutes  as  to  Place  of  Payment. — Pro- 
visions for  payment  at  bank  and  other  provisions  relating  to 
place  of  payment  are  made  by  statute  in  some  of  the  States.2 
Thus,  by  the  Indiana  statute  a  note  is  not  governed  by  mer- 
cantile law  unless  made  payable  at  a  bank  in  that  State.3 

'Ferner  v.  Williams,  39  Barb.  9  (1861). 

2 In  Alabama  promissory  notes  to  be  negotiable  must  be  made  payable 
"at  a  bank  or  private  banking  bouse,"  Code  of  1876  §  2100.  But  by  the 
act  of  1873  all  "  bills  and  notes  payable  at  a  banker's  or  a  designated  place 
of  payment,  are  negotiable  instruments,"  Oates  v.  National  Bank,  10 Otto 
23'J  (1879).  In  California,  "a  negotiable  instrument  maybe  with  or  without 
designation  of  the  place  of  payment"  (Civ.  Code  1872  ?  8091),  and  "  a  nego- 
tiable instrument  which  does  not  specify  a  place  of  payment  is  payable  at 
the  residence  or  place  of  business  of  thu  maker,  or  where  he  may  be  found  " 
(lb.  |  8100).  In  Dakota  the  provisions  of  the  California  Code  have  been 
copied  (Rev.  Code  1877  \\  1S25.  1831).  In  Indiana  promissory  notes,  to  be 
negotiable  independent  of  equities,  must  be  payable  to  order  or  bearer  and 
in  a  bank  in  Indiana  (1  R.  S.  1876.  Davis'  Ed.,  c.  177  \  6)  But  if  payable 
at  a  particular  place,  demand  at  such  place  need  not  be  pleaded  or  proved 
(2  lb.  p.  76  \  82).  In  Kentucky  only  such  promissory  notes  as  are  made 
payable  and  negotiable  at  a  bank  incorporated  by  Kentucky  law,  and  are 
indorsed  and  discounted  by  the  said  bank  or  some  other  bank  in  Kentucky, 
are  negotiable  like  foreign  bills  of  exchange  (1877  G.  S.  c.  22  \  21).  All 
other  bonds,  bills  and  notes,  whether  for  money  or  property,  are  assignable 
subject  to  defense  (lb.  I  6).  In  Virginia  (1873  Code  c.  141  I  7  ;  1  R.  C.  483  \ 
2),  and  in  West  Virginia,  (1879  R.  S.  c.  12  \  7),  negotiable  notes  and  checks 
must  be  made  payable  in  the  State  "  at  a  particular  bank,  or  at  a  particular 
office  thereof  for  discount  and  deposit,  or  at  the  place  of  business  of  a  sav- 
ings institution  or  savings  bank,  or  at  the  place  of  business  of  a  licensed 
broker."  And  see  Bank  of  Huntington  v.  Hysell,  22  W.  Va.142  (1883).  As 
to  the  construction  of  these  statutes,  see  Freeman's  Bank  v.  Ruck  man,  16 
Gratt.  126  (1860);  Bradley  v.  Patton,  51  Ala.  108  (1S74) ;  Cook  v.  Mut.  Ins. 
Co.,  53/6.  37  (1875);  Hofloway  v.  Porter,  46  Ind.  62  (1874);  Parkinson  v. 
Finch,  45  Ind.  122  (1873) ;  Musselman  v.  McElhenny,  23  lb.  4  (1864) ;  Stapp 
v.  Anderson,  1  A.  K.  Marsh.  398  (1819) ;   Jones  v.  Wood,  3  lb.  162  (1820). 

:t  Woodward  v.  Matthews,  15  Ind.  339  (I860);  Bremmerman  v.  Jennings, 
60  lb.  175  (1877);  Crossan  v.  May,  68  lb.  242  (1879);  Zook  v.  Simonson,  72 
Ind.  83  (1880)  ;  Ruddell  v.  Phalor,  lb.  533;  Woolen  v.  Whitacre,  73  lb.  198; 
Woolen  v.  Wise,  lb.  212.  But  if  transferred  by  delivery  only,  such  note  is 
subject  to  equities,  Foreman  v.  Beckwith,  73  lb.  515  (1881).  And  if  the 
bank  has  ceased  to  exist  before  the  transfer  of  the  note,  it  becomes  non- 
negotiable,  Brown  v.  Hull,  33  Gratt.  23  (1880).  A  note  "payable  at  the 
Indiana  Banking  Company  of  Indianapolis  "  is  not,  however,  entitled  to  the 
protection  of  the  statute  as  a  negotiable  note,  Rominger  v  Keyes,73  Ind.  375 
(1881);  nor  a  note  payable  "at  the  bank  at  Goshen,"  without  more  par- 
ticular designation,  Butterfield  v.  Davenport,  84  Ind.  590  (1882)  ;  although 
there  may  be  only  one  bank  in  the  place,  Hardy  v.  Brier,  91  lb.  91  (1883). 
If  payable  at  a  New  York  bank  it  is  not  governed  by  the  lex  tnercatoria,  Mix 
v.  State  Bank,  13  Ind.  521  (1859).  And  it  seems  that  the  statute  of  Anne  is 
not  in  force  in  Indiana,  and  notes  depend  for  their  commercial  qualities 
wholly  on  the  Indiana  statute,  Mix  v.  State  Bank,  supra;  Hunt  v.  Stan  dart, 
15  Ind.  33,  160  (1860). 


172  FORM THE    CONTRACT    FOR    PAYMENT. 

The  courts  in  that  State,  however,  favor  the  presumption 
that  if  a  bank  is  mentioned,  without  designating  its  location, 
it  is  an  Indiana  bank.1  Prior  to  1843  negotiable  notes  in 
Indiana  had  to  be  paid  at  a  chartered  or  incorporated  bank, 
and  if  not  so  payable,  could  not  be  transferred  by  delivery, 
although  payable  to  bearer.2  This  has  now  been  changed  in 
Indiana,3  but  is  still  the  law  of  Kentucky.4  Where  the 
bank  named  as  place  of  payment  is  incorporated,  the  courts 
of  the  State  by  whose  laws  it  is  incorporated  will  take  notice 
of  that  fact.5  But  the  courts  will  not  in  general  take  notice 
that  the  office  of  a  firm  in  another  State  is  a  bank.6  Where 
&  bank  is  required  by  the  statute,  the  name  of  a  fictitious 
bank  is  no  compliance.7  The  name  may,  however,  be  left 
blank  and  filled  in  afterward,  as  in  the  case  of  other  blanks.8 
It  has  been  further  held  in  Indiana  that  notes  payable  to 
order  are  negotiable,  although  not  payable  in  bank  ;9  and 
that  notes  which  are  non-negotiable  under  the  statute  are 
nevertheless  assignable,10  though  subject  to  defense  ;n  but  that 
they  are  not  prima  facie  payment  of  prior  indebtedness  like 
negotiable  notes.12 

Indianapolis,  &c,  Mfg.  Co.  v.  Caven,  53  Ind.  258  (1876) ;  and  especially 
if  payable  at  the  "  Citv  Bank,  Shelbyville,  Ind.,"  Henderson  v.  Ackelmine, 
59  Ind.  540  (1877) :  Burroughs  v.  Wilson,  lb.  536  (1877) ;  Roach  v.  Hill,  54 
lb.  245  (1876) ;  Walker  v.  Woolen,  lb.  164. 

2  Ind.  R.  C.  1831  p.  93;  McNitt  v.  Hatch,  4  Blackf.  531  (1838). 

3  Davis  v.  McAlpine,  10  Ind.  137  (1858) ;  Reed  v.  Trentman,  53  76.  438 
(1876).     And  it  need  not  be  a  national  bank,  Reed  v.  Trentman,  supra. 

'Campbell  v.  Farmer's  Bank,  10  Bush  152  (1872)  ;  Act  of  1850  p.  8;  1877 
G.  S.,  c.  22  I  21.     See,  too,  Payne  v.  Bank  of  Bowling  Green,  10  Bush  176. 

5 Gordon  v.  Montgomery,  19  Ind.  110  (1862).  But  see,  Salmons  v.  Hoyt, 
53  Ga.  493  (1874). 

"Crossan  v.  May,  68  Ind.  242  (1879). 

'Parkinson  v.  Finch,  45  Ind.  122.  And  in  such  case  the  maker  is  not 
estopped  from  showing  the  designated  bank  to  be  a  fictitious  one,  Parkin- 
son v.  Finch,  supra.     But  see,  contra,  Hall  v.  Harris,  16  lb.  180  (1861). 

8Spitler  v.  James,  32  Ind.  203  (1869) ;  Gillaspie  v.  Kelley,  41  lb.  158  (1872). 
And  at  suit  of  a  bona  fide  holder  such  filling  of  a  blank,  though  made  in 
disregard  of  a  verbal  agreement  between  the  original  parties,  binds  the 
maker,  Spitler  v.  James,  supra. 

9Snyder  v.  Oatman,  16  Ind.  265  (1861). 

10 Parkinson  v.  Finch,  45  Ind.  122  (1874) ;  King  v.  Vance,  46  lb.  246. 

"Reagan  v.  Burton,  67  Ind.  347  (1879) ;  Woodward  v.  Matthews,  15  lb.  339 
(1869). 

"Lindeman  v.  Rosenfield,  67  Ind.  246  (1879). 


NAME    OF    PARTY.  17& 


CHAPTER  V. 

FORM— THE  PARTIES  DESIGNATED. 

I.  The  Maker  or  Drawer. 
II.  The  Payee. 
III.   The  Drawee. 


I.    THE   MAKER   OR   DRAWER. 

129.  Name  of  Party — In  General. 

130.  Execution  by  Partners. 

131.  by  Agent — Principal  not  Named. 

132.  by  Public  Officer. 

133.  Official  Signature  — "Agent,"  &c— Principal  not  Named. 

134.  Signature  as  "  Executor  "—"Administrator  "—"Guardian." 

135.  In  Principal's  Name — Corporation  and  Official  Signatures. 

136..  Principal  Named  only  in  Agent's  Official  Title  in  Body  of  Instrument. 

137.  in  his  Signature. 

138.  Principal  Indicated  by  Corporation  Seal  or  Paper. 

139.  by  Words  "  on  Behalf  of,"  &c. 

140.  by  Charging  to  his  Account. 

141.  by  Recital  of  Consideration  Moving  to  Him. 

142.  by  Form  of  Promise — "  I  Promise." 

143.  "  We  or  Either  of  Us  "—"Jointly  and  Severally." 

144.  by  Agent's  Promise  "as"  such. 

145.  as  Acceptor  or  Indorser   by   Drawee's    or   Payee's 

Name. 

146.  Foreign  Statutes  as  to  Signature  by  Agent. 

147.  Parol  Evidence — Disclosing  Principal— Discharging  Agent. 

148.  Maker's  or  Drawer's  Name — Fictitious — Uncertain. 

149.  Joint  and  Several  Notes. 

§  129.  Name  of  Party — In  General. — It  is  an  essential 
requisite  of  all  commercial  paper  that  the  parties  to  it  should 
appear  by  name  or  other  plain  designation  in  the  instrument 
itself.  Thus,  it  must  appear  from  the  instrument  who  is  to 
be  bound  by  it  as  maker  or  drawer.1  This  is  usually  made 
apparent  by  the  signature  subscribed  to  the  paper.  It  may, 
however,  as  we  have  seen,  appear  in  the  body  of  the  instru- 
ment, e.  g.  "I,  A.  B.,  promise,"  &c,  instead  of  at  the  bottom,2 
although  this  is  unusual  and  cannot  be  recommended.     And 

n  Daniel  101;  1  Edwards  U43 ;  1  Parsons  36;  Story  on  Bills  §  53;  Story 
on  Prom.  Notes  §  34. 

'May  v.  Miller,  27  Ala.  515  (1855) ;  Tevis  v.  Young,  1  Mete.  199  (Ky.  1858), 
See,  also,  Chapter  III. 


174  FORM THE    PARTIES    DESIGNATED. 

in  some  States  it  is  required  by  statute  that  the  name  of 
maker  or  drawer  be  subscribed  to  the  instrument.1 

Although  in  the  absence  of  statutory  provisions  it  may  not 
be  necessary  for  the  name  or  the  full  name  of  the  maker  or 
drawer  to  appear,  the  person  to  be  charged  must  be  desig- 
nated with  certainty.  Thus,  it  is  not  sufficient  for  a  prom- 
issory note  that  it  be  signed  "J.  C.  or  else  H.  B."2  A 
maker  may,  however,  be  bound  by  an  assumed  name,3  or  by 
initials.*  But  it  has  been  held  that  one  signing  a  fictitious 
name  as  maker  for  the  accommodation  of  the  payee  is  not 
liable  on  the  instrument,  as  no  credit  was  given  to  him.5 
Some  foreign  statutes  require  that  the  name  of  the  maker 
or  drawer  be  expressed  in  full.6  And  this  is  recommended 
as  the  only  satisfactory  rule  in  the  matter.  In  practice, 
however,  it  is  far  from  being  generally  observed. 

§  130.  Execution  by  Partners. — A  firm  note  or  bill  should 
be  signed  in  the  firm  name,  and  if  signed  by  the  partners 
in  their  individual  names,  it  is  not  a  partnership  note  or 
bill  and  is  no  evidence  of  a  partnership  debt.7  But  a  firm 
has  been  held  on  a  note  made  by  the  partners  in  their 
individual  names  before  the  adoption  of  a  firm  name  for 
the  benefit  of  the  firm,  and  entered  as  a  firm  transaction  in 

'See  Chapter  III. 

2  Ferris  v.  Bond,  4  B.  &  Aid.  679.  See,  too,  Wilkinson  v.  Lutwidge,  Stra. 
648. 

3Melledge  v.  Boston  Iron  Works,  5  Cush.  158  (1849). 

4See  Chapter  III.  And  a  party  signing  a  bill,  note  or  check  by  initial  or 
contraction  of  his  Christian  name  may  he  sued  in  the  same  way  in  New 
Jersey  (2  R.  S.  187  and  p.  852  §  28;  1870  P.  L.  59). 

5Bartlett  v.  Tucker,  104  Mass.  336  (1870). 

6See  Chapter  III. 

'Byles  44;  Gay  v.  Johnson,  45  N.  H.  587  (1864) ;  Buffum  v.  Seaver,  16  lb. 
160  (1844).  At  least  such  note  is  not  prima  facie  a  firm  note,  Richardson  v. 
Huggins,  23  N.  H.  106  (1851).  But  unless  there  be  evidence  of  a  partner- 
ship and  no  evidence  of  a  partnership  name  other  than  that  signed,  a 
note  signed  with  the  full  names  of  the  partners,  F.  C.  and  R.  C  ,  is  prima 
facie  a  firm  note,  although  it  appear  that,  in  two  instances,  the  name  of 
"F.  &  R.  Cleveland"  had  been  used,  McGregor  v.  Cleveland,  5  Wend.  475 
(1830).  But  such  a  note,  given  after  the  dissolution  of  a  partnership  as  a 
substitute  for  a  previous  partnership  note,  does  not  make  the  deht  an  indi- 
vidual debt,  Maynard  v.  Fellows,  43  N.  H.  255  (1861).  As  to  the  power  of  a 
partner  to  bind  his  firm  by  signing  the  full  individual  names  instead  of  the 
firm  name,  see  Norton  v.  Seymour,  3  C.  B.  792;  McClae  v.  Sutherland,  3  El. 
&B1.  36;  Chitty  72. 


EXECUTION    BY    PARTNERS.  175 

its  books.1  A  note  made  by  an  individual  partner  in  the 
firm  name  is  prima  facie  the  act  of  the  firm  done  in  the 
course  of  its  partnership  business.2  And  even  where  there 
is  no  firm,  a  negotiable  instrument  executed  by  B.  in  the 
firm  name  of  "A.  &  Co.,"  with  A.'s  knowledge,  will  be  bind- 
ing upon  both  persons  as  partners.3 

The  firm  name  may,  indeed,  be  the  individual  name  of  one 
of  the  partners,  and  partnership  paper  executed  in  that  name 
will  of  course  bind  the  firm.4  In  such  case,  however,  a  bill 
drawn  in  that  name,  although  in  the  firm  business  and  for 
the  benefit  of  the  firm,  is  prima  facie  the  bill  of  the  indi- 
vidual partner  and  the  burden  is  on  the  holder  to  show  its 
partnership  character.5     But  although  it  is  not  addressed  to 

•Kitner  v.  Whitlock,  8S  111.  513  (1878). 

2  Adams  v.  Rugsles,  17  Kans.  237  (1876);  Hamilton  v.  Summers,  12  B. 
Mon.  11  (1851) ;'  Thurston  v.  Lloyd,  4  Md.  283  (1853) ;  Manning  v.  Ha  vs.  6 
lb.  5  (1854) ;  Mifflin  v.  Smith,  17  Serg.  &  R.  165  (1828)  ;  Ensminsjer  v.  Marvin, 
5  Blackf.  210  (1839):  Carrier  v.  Cameron,  31  Mich.  373  (1875);  National 
Union  Bank  v.  Landon,  66  Barb.  193  (1870).  Thus,  it  is  said  by  Chancellor 
Walworth,  in  Whitaker  v.  Brown,  16  Wend.  507  (1836)  :  "A  note  given  by 
one  partner,  in  the  name  of  the  firm,  is  of  itself  presumptive  evidence  of 
the  existence  of  a  partnership  debt,  as  each  partner  has  a  general  authority 
to  contract  debts  in  the  business  of  the  firm.  The  burden  of  proof,  there- 
fore, lay  upon  the  plaintiff  in  this  case  to  show  that  this  note  was  not  given 
for  such  a  debt  "  The  same  rule  applies  to  indorsements  in  a  firm  name, 
Morehead  v.  Gilmore,  77  Penna.  St.  118  (1874).  And  it  is  said  by  Judge 
Marshall,  in  Hamilton  v.  Summers,  12  B.  Mon.  12.  that  "the  belief  of  the 
payee  that  the  money  was  borrowed  for  individual  purposes,  though  it 
might  prove  an  intention  on  his  part  to  do  an  unjust  act,  would  have  no 
effect  in  law,  unless  the  fact  correspond  with  his  belief.  And  even  if  the 
money  was  avowedly  borrowed  for  a  private  purpose  with  the  knowledge 
of  the  payee,  still  if  it  was  in  fact  used  for  the  purpose  of  the  firm,  we  are 
not  prepared  to  say  that  the  note  executed  in  the  firm  name  should  not  be 
bindii  g  upon  all  the  partners." 

'Smith  v.  Hill,  45  Vt.  90  (1872). 

4Byles44;Chitty56.  73;  Bank  of  South  Carolina  v.  Case,  8  B.  &C, 427(1828) ; 
S.  C,  2  Man.  &  Ry.  459;  Smith  v.  Craven,  1  Cromp.  &  J.  507;  Nicholson  v. 
Ricketts,  29  L.  J.  Q.  B.  55;  Ex  parte  Bolitho,  Buck  100;  Wintle  v.  Crowther, 
1  Tvrw.  214:  Lloyd  v.  Ashby,  2  B.  &  Ad.  29;  Nicholson  v.  Patton,  2  Cranch 
C  C.  164  (1819) ;  Kinsman  v.  Dallam,  5  T.  B.  Mon.  382  (1827) ;  Macklin  v. 
Crutcher,  6  Bush  401  (1869).  The  name  adopted  by  the  partnership  seldom 
contains  die  names  of  all  the  partners.  It  may  even  be  a  name  containing 
none  of  the  individual  names.  The  firm  name  will,  however,  bind  all  the 
members  of  the  firm  whether  their  names  appear  or  not.  Thus,  four  part- 
ners may  do  business  in  the  name  of  two,  and  all  be  bound  by  a  note  in 
that  name,  Voorhees  v.  Jones,  5  Dutch.  270  (1861).  Or  the  individual  name 
may  he  used  by  the  firm  only  for  some  special  purpose  such  as  a  hank  ac 
count.  Where  this  is  the  case  the  linn  is  liable  on  a  check  drawn  on  suCl 
account  bv  the  individual  partner,  Crocker  v.  Colwell,  46  X.  Y.  212  (1871). 

'Mason  v.  Rumsey,  1  Campb  384;  Bank  of  South  Carolina  v.  Case, 
wpra;   Ex  pad?  Bolitho,   Buck   100;  Smith  v.  Craven,   1  Crump.  &  J.  507 


176  FORM — THE    PARTIES    DESIGNATED. 

the  place  of  business  of  the  firm,  a  bill  drawn  in  such  man- 
ner on  the  firm  and  for  its  benefit  and  accepted  by  the  other 
partner  binds  the  firm.1  And  a  suit  may  be  maintained, 
against  B.,  as  partner  with  A.,  on  a  note  made  in  the  name 
of  A.,  upon  admissions  of  B.  as  to  the  consideration  and 
partnership.2 

On  the  other  hand,  where  the  partnership  business  is  in 
the  name  of  one  partner  and  he  obtains  the  discount  of  a  bill 
in  his  own  name,  from  a  payee  having  no  knowledge  of  the 
partnership,  and  in  fraud  of  the  firm,  the  partnership  will 
not  be  bound.3  And  if  a  firm  consisting  of  J.  B.  and  H. 
carries  on  its  business  in  the  individual  name  of  "  J.  B.," 
a  bill  drawn  by  H.  in  the  name  of  "  J.  B.  &  Co."  will  not 
bind  the  firm.4 

Where  there  is  an  ordinary  firm  name,  a  bill  discounted 
for  the  benefit  of  the  firm  in  the  name  of  one  of  the  part- 

Buckner  v.  Lee,  8  Ga.  285  (1850) ;  Bank  of  Rochester  v.  Monteath,  1  Denio 
402  (1845);  Manufacturers'  Bank  v.  Winship,  5  Pick.  11  (1827).  But  the 
opposite  presumption  was  made  in  a  similar  case  where  there  was  no  busi- 
ness carried  on  by  the  individual  whose  name  was  used,  Yorkshire  Banking 
Co.  v.  Beatson,  L.  R.  5  C.  P.  D.  109  (Ct.  App.  1880),  affirming  L.  R.  4  C.  P. 
D.  204  (1879).  A  promissory  note  made  to  such  firm  is  generally,  in  like 
manner,  prima  facie  the  property  of  the  individual  partner  named,  Boyle  v. 
Skinner,  19  Mo.  82  (1853) ;  Oliphant  v  Mathews,  16  Barb.  608  (1853) ;  United 
States  Bank  v.  Binney,  5  Mason  C.  C.  176  (1828).  In  this  case,  Story,  J.,  says,  p. 
184  :  "  Where  the  business  is  carried  on  in  the  name  of  one  of  the  partners 
and  his  name  alone  is  the  name  of  the  firm,  there,  in  order  to  bind  the  firm, 
it  is  necessary  not  only  to  prove  the  signature,  but  that  it  was  used  as  the 
signature  of  the  firm  by  a  party  authorized  to  use  it  on  that  occasion  and 
for  that  purpose.  *  *  *  The  proof  of  the  signature  is  not  enough.  The 
plaintiffs  must  go  further  and  show  that  it  is  a  partnership  signature."  In 
such  case  "it  was  formerly  held  that  the  holder  might  charge  the  signing 
partner  or  the  firm  at  his  election,"  Byles'44;  Hall  v.  Smith,  1  B.  &  C.  407 ; 
S.  C,  2  D.  &  R.  484;  Clerk  v.  Blackstock,  Holt  474;  March  v.  Ward,  Peake 
130  ;  Wilks  v.  Back,  2  East  14'2.  But  see  now,  Ex  parte  Buckley,  14  M.  &  W. 
469. 

'Stephens  v.  Reynolds,  5  H.  &  N.  513  (1860) ;  29  L.  J.  Ex.  278. 

2Brannon  v.  Hursell,  112  Mass.  63  (1873).  So,  if  corn  be  sold  to  a  firm 
and  a  note  given  for  it  by  one  partner,  who  represents  it  as  given  on  the 
firm  account,  it  has  been  held  to  be  binding  on  the  firm,  Seekell  v.  Fletcher, 
53  Iowa  330  (1880). 

Yorkshire  Banking  Co.  v.  Beatson,  L.  R.  4  C  P.  D.  204;  9  Cent.  L.  J.  453 
(1879).  See,  too,  Ex  parte  Husbands,  2  Glyn.  &  J.  4,  where  such  bills  were 
held  to  be  provable  in  bankruptcy  against  the  separate  estates  of  both  part- 
ners, but  not  against  their  joint  estate. 

♦Faith  v.  Richmond,  11  Ad.  &  El.  339  (1840) ;  Kirk  v.  Blurton,  9  M.  &  W. 
284  (1841).  The  latter  case  was  afterwards  criticised  in  Stephens  v.  Rey- 
nolds, 5  H.  &  N.  513  (1860). 


PARTNERSHIP    NAME.  177 

ners,  will  only  bind  the  individual  who  signs  it  ;l  but  in  such 
a  case  the  partnership  may  be  held  in  an  action  for  money 
had  and  received.2  And  where  a  draft  upon  a  firm  is  accepted 
by  one  of  the  partners  in  his  individual  name,  the  accept- 
ance has  been  said  to  bind  neither  the  individual  nor  the 
firm.3  It  is  often  a  question  of  fact  whether  a  bill  or  note  is 
the  promise  of  a  firm  or  that  of  an  individual.  Thus,  where 
a  note  read  "  I  promise,"  &c,  and  was  signed  "  Samuel  W. 
Snow,  Snow,  Foote  &  Co.,"  the  question  as  to  whether  it  was 
the  note  of  the  individual  or  of  the  firm  was  left  to  the  jury.4 
As  may  be  seen  from  these  authorities,  the  general  rule 
as  to  partnership  paper  requires  the  firm  name  to  be  used, 
if  the  firm  is  to  be  bound  by  the  instrument.  An  appa- 
rent exception  is  admitted  to  this  rule  when  the  name  of  an 

XB vies  44;  Chitty  72;  1  Daniel  335;  Siffkin  v.  Walker,  2  Campb.  308;  Emly 
v.  Lye,  15  East  7  (1812) ;  Smith  v.  Craven,  1  Cromp.  &  J.  500  (1831) ;  Nich- 
olson v.  Ricketts,  29  L.  J.  Q.  B.  55;  In  re  Adansonia  Fibre  Co.,  L.  R.  9  Ch. 
App.  635  (1874) ;  Macklin  v.  Crutcher,  6  Bush  401  (1869),  overruling  Hykes 
V.  Crawford,  4  Bush  19;  Bank  of  Commerce  v.  Selden,  3  Minn.  155  (1859). 
Even  although  the  proceeds  be  afterward  used  in  the  firm  business,  Tall- 
madge  v.  Penoyer,  35  Barb.  120  (1861).  So,  too,  a  bill  drawn  on  one  part- 
ner "  on  account  of"  the  firm  and  by  him  accepted  generally  in  his  individ- 
ual name,  Cunningham  v.  Smithson,  12  Leigh  32  (1841).  And  a  note  made 
in  such  name  will  be  treated  as  evidence  of  the  creditor's  election  to  trust 
the  maker  only,  unless  the  note  has  been  given  in  the  firm  business  and  for 
its  benefit,  and  the  credit  appears  to  have  been  given  to  the  firm,  Foster 
v.  Hall,  4  Humph.  346  (1843).  But  a  note  signed  by  one  partner  "  for  A.  B. 
&  Co.,"  will  bind  the  firm,  Staats  v.  Howlett,  4  Denio  559  (1S47)  ;  Lord  Gal- 
way  v.  Matthews,  1  Campb.  403.  In  like  manner  an  acceptance,  not  for 
partnership  purposes,  wi  the  name  of  "  Dry  &  Co."  will  not  be  binding  on 
the  firm  trading  under  the  name  of  Dry  &  Everett,  Sheppard  v.  Dry,  Nor- 
wich 1S40,  cor.  Parke,  B.,  affirmed  in  Q.  B. ;  cited  in  Byles  73  n. 

2 Ontario  Bank  v.  Hennessy,  48  N.  Y.  545  (1872). 

3Heenan  v.  Nash,  8  Minn.  407  (1862).  But  if  a  note  is  made  payable  to  a 
firm  in  its  firm  name,  an  indorsement  by  one  partner  in  his  own  name  will 
avail  as  a  transfer  of  the  equitable,  although  not  of  the  legal,  title  of  the 
firm,  Alabama  Coal  Mining  Co.  v.  Brainard,  35  Ala.  476  (1860).  And  it  has 
been  held  that  a  bill  of  exchange  drawn  on  the  firm  by  one  of  the  partners 
in  his  own  name,  but  for  a  partnership  debt,  amounts  to  an  accepted  bill 
by  the  firm  and  binds  it  as  such,  Dougal  v.  Cowles,  5  Day  511  (1813). 

*Sherwood  v.  Snow,  46  Iowa  481  (1877).  The  words  "I  promise,"  &c,  in 
the  body  of  a  note  signed  in  the  firm  name  do  not  affect  its  character  as  a 
firm  note,  Doty  v.  Bates,  11  Johns.  544  (1814).  So,  too.  Lord  Gal  way  v. 
Matthews,  1  Campb.  403;  Smith  v.  Jarves,  Ld.  Raym.  1484.  And  where 'the 
individual  names  of  all  the  partners  are  signed  by  one  partner  to  a  note  be- 
ginning "I  promise,  &c,  for  A.,  B.  &  Co.!  A.,"  it  is  held,  in  England,  that 
the  signer  A.  is  not  severally  liable,  Ex  parte  Bucklev,  In  re  Clarke,  14  M. 
&  W.  469  (1845),  overruling  Hall  v.  Smith,  1  B.  &  C.  407  (1823).  A  similar 
note,  however,  has  been  held  to  be  joint  and  several  in  Massachusetts, 
Hemmenway  v.  Stone,  7  Mass.  58. 

M 


178  FORM THE    PARTIES    DESIGNATED. 

individual  partner  is  used  by  the  firm  in  its  business  as  its 
firm  name.  There  is  also  an  exception  in  the  case  of  a  bill 
drawn  on  a  firm  and  accepted  by  one  partner  in  his  own 
name  for  partnership  purposes.  Such  an  acceptance  will 
bind  the  firm.1  In  this  case  the  firm  name  of  the  drawee 
indicates  with  sufficient  clearness  the  character  of  the  accept- 
ance. 

§  131.  Execution  by  Agent — Principal  not  Named. — As  has 
been  said,  the  party  to  be  charged  by  commercial  paper  must 
be  shown  by  the  instrument  itself.  This  principle  fiuds  its 
most  frequent  application  in  contracts  executed  by  agents. 
As  to  such  instruments  it  is  a  general  rule  that  the  principal, 
for  whom  the  agent  acts,  must  appear  in  the  paper,  and  that 
otherwise  the  agent  executing  it  is  individually  liable  on  it 
as  his  own  contract.2  And  this  is  true,  although  the  instru- 
ment be  given  in  the  principal's  business  and  for  a  consider- 
ation beneficial  to  him.3  This  is  illustrated  by  the  case 
of  a  seller's  agent  taking  a  note  for  the  goods  payable  to 

^yles  46;  Chitty  73 ;  1  Parsons  123;  Mason  v.  Ramsey,  1  Cam pb.  384; 
Dolman  v.  Orchard,  2  C.  &  P.  105.  But  see  contra,  Heenan  v.  Nash,  8  Minn. 
407.     See,  too,  p.  177  note  3,  supra. 

2Byles  37;  Chitty  43;  1  Daniel  285;  1  Edwards  §  77 ;  1  Parsons  92;  Story 
on  Prom.  Notes  \\  65,  68  ;  Stackpole  v.  Arnold,  11  Mass.  '17  ;  Bank  of  Roches- 
ter v.  Monteath,  1  Denio  402  (1845) ;  Snelling  v.  Howard,  51  N.  Y.  373  ;  S.  C, 
7  Robt.  400;  Hancock  v.  Fairfield,  30  Me.  299  (1849);  Snow  v.  Goodrich,  14 
lb.  235  (1837);  Graham  v.  Campbell,  56  Ga.  258  (1876);  Bass  v.  Randall,  1 
Minn.  404  (1857);  Hopkins  v.  Blane,  1  Call  361  (1798).  But  see,  Wolfe  v. 
Jewett,  10  La.  383  (1830);  Leadbitter  v.  Farrow,  5  M.  &  S.  345;  Sowerby  v. 
Butcher.  2  C.  &  M.  268 ;  4  Tvrw.  320 ;  Alexander  v.  Sizer,  L.  R.  4  Exch.  105  ; 
Burred  v.  Junes,  3  B.  &  Aid.' 47 ;  Bult  v.  Morrell,  12  Ad.  &  El.  750  ;  Ducarry 
v.  Gill.  Mood.  &  M.  450;  S.  C,  4  C.  &  P.  121 ;  Thomas  v.  Bishop,  2  Stra.  955; 
Frontin  v.  Small,  lb.  705;  Wilks  v.  Back,  2  East  142;  Barlow  v.  Bishop,  1  lb. 
434  ;  S.  C,  3  Esp.  266;  White  v.  Cayler,  6  T.  R.  176;  Goupy  v.  Harden.  7 
Taunt.  159;  Appleton  v.  Binks,  5  East,  148;  In  re  Adansonia,  43  L.  J.  Ch. 
734  (1874).  And  even  although  known  by  the  other  party  to  be  acting 
merely  as  an  agent  of  others,  French  v.  Price,  24  Pick.  13  (1833) ;  Hastings 
v  Lovering,  2  lb.  214  (1824) ;  Story  on  Prom.  Notes  \  65.  But  a  bill  drawn 
on  the  principal  but  accepted  by  the  agent  in  his  own  name,  has  been  held 
to  be  binding  on  the  principal,  Lindus  v.  Bradwell,  5  C.  B.  583.  And  see, 
Gurney  v.  Evans,  3  H.  &  N.  122;  S.  C,  27  L.  J.  Exch.  166;  Edmunds  v. 
Bushell,  35  L.  J.  Q.  B  91.  And  the  same  rule  applies  to  other  simple  con- 
tracts. Buffum  v.  Chadwick,  8  Mass.  103  (1811) ;  Arfridson  v.  Ladd,  12  lb.  173 
(1815);  Allen  v.  Rostain.  11  Serg.  &  R.  362  (1824);  Blakeman  v.  McKay,  1 
Hilt.  266  (1856) ;  Davenport  v.  Riley,  2  McCord  198  (1822)  ;  Rollins  v.  Phelps, 
5  Minn.  463  (1861)  ;   Hastings  v.  Lovering,  supra. 

3Bradlee  v.  Boston  Glass  Co..  16  Pick.  347  ;  Snow  v.  Goodrich,  14  Me.  235 
(1837)  ;  Cram  v.  Boyd,  9  Ind.  2S9  (1857). 


EXECUTION    BY    AGENT.  179 

himself  individually  and  indorsing  it  over  to  his  principal,1 
or  drawing  in  his  own  name  on  the  purchaser  in  favor 
of  his  principal.2  The  agent  is  individually  liable  on  such 
an  instrument,  although  he  had  authority  from  his  principal 
to  give  the  bill  or  note  in  question  for  the  principal;3  and 
notwithstanding  subsequent  ratification  of  his  act  by  the 
principal  ;*  and  notwithstanding  that  the  principal  may  have 
been  disclosed  and  the  maker  known  to  be  but  an  agent;5 
and  even  though  a  direction  be  added  to  charge  to  the 
account  of  the  principal.6     And  the  principal  is  not  liable 

1  Heuback  v.  Mollmann,  2  Duer  227  (1853).  But  in  such  case  the  agent's 
indorsement  to  his  principal  does  not  make  him  liable  individually  to  the 
principal,  Sharp  v.  Emmet,  5  Whart.  288  (1839).  He  is,  however,  liable  on 
such  an  indorsement  even  to  his  principal,  if  acting  under  a  del  credere  com- 
mission,  Mackenzie  v.  Scott,  6  Bro.  P.  C.  280;  Goupy  v.  Harden,  7  Taunt. 
160;  2  Marsh.  454.  In  Denmark  (1825  Exch.  Law  $  14)  an  agent  buying  a 
bill  of  exchange  for,  and  indorsing  it  to,  his  principal,  is  individually  liable 
to  all  persons  except  the  principal. 

2 In  this  case  he  is  liable  even  to  his  principal  on  such  a  bill,  Le  Fevre  v. 
Lloyd,  5  Taunt.  749.  But  not  if  the  transaction  was  known  to  and  accepted 
by  the  principal,  Jones  v.  Lathrop,  44  Ga.  398  (1871) ;  Kimmel  v.  Bittner,  62 
Penna.  St.  203  (1869).     And  see,  Sharp  v.  Emmet,  supra. 

3Bradlee  v.  Boston  Glass  Co.,  16  Pick.  347  ;  Snow  v.  Goodrich,  14  Me.  235 
(1837).  But  contra,  if  he  signed  as  agent  and  was  authorized  to  do  so,  Bank 
Of  Cape  Fear  v.  Wright,  3  Jones  L.  376  (1856). 

*Sturdivant  v.  Hull,  59  Me.  172  (1S78).  But  where  a  contract  was  made  by 
""C.  L.,as  agent  for  and  on  the  part  and  behalf  of  S.  R.,"  and  afterward  ratified 
in  writing  by  S.  R.,  although  C.  L.  have  signed  it  simply  with  his  individual 
name,  he  cannot  be  holden  on  it,  Spittle  v.  Lavender,  2  Brod.  &  Bing.  224 
(1821).  And  it  is  well  established  that  the  principal  may  render  himself 
liable  upon  a  contract  made  by  the  agent  in  his  own  name  by  subsequent 
ratification  of  it,  Evans  v.  Wells,  22  Wend.  324  (1839). 

51  Parsons  93;  Arnold  v.  Sprague,  34  Vt.  402  (1861);  Bedford  Ins.  Co.  v. 
Covell,  8  Mete.  442  (1844);  Collins  v.  Buckeye  State  Ins.  Co.,  17  Ohio  St.  215 
1867) ;  Andrews  v.  Allen,  4  Harr.  452  (Del.  1847).  So,  in  a  contract  of  sale 
signed  by  an  auctioneer,  Mills  v.  Hunt,  20  Wend.  431  (1838).  But  in  Louisi- 
ana an  agent  executing  a  note  in  his  individual  name  with  no  additional 
words  of  agency  is  not  held  liable,  if  his  principal  was  known  to  the  payee 
at  the  time  of  making  the  note,  Milligan  ».  Lyle,  24  La.  An.  144  (1872).  So, 
too,  where  the  drawer  signed  a  bill  as  agent  of  the  drawee  in  his  individual 
name,  with  the  knowledge  of  the  payee  and  in  the  drawee's  business,  he 
was  held  not  individually  liable  in  Roberts  v.  Austin,  5  Whart.  313  (1839). 

6Byles  37;  Goupy  v  Harden,  7  Taunt.  160;  2  Marsh.  454;  Leadbitter  v. 
Faiiow,  5  M.  &  S.  845;  Bank  of  British  N.  Am.  v.  Hooper,  5  Gray  567 
(1856) ;  Bass  v.  O'Brien,  12  Gray  477  (1859),  the  principal  referred  to  in  this 
rase  being  the  "  bark  Dublin  ;"  Mavhew  v.  Prince,  11  Mass.  54  (1814)  ;  New- 
hall  v.  Dunlap,  14  Me.  180  (1837);  Snow  v.  Goodrich,  lb.  235;  Tannatt  v. 
Rocky  Mtn.  Nat.  Bank,  1  Col.  278  (1871),  the  drawer  in  this  case  being 
agent  for  the  drawee,  but  adding  no  words  indicative  of  agency  to  his  indi- 
vidual signature.  This  case  was  disapproved  in  Hagar  v.  Rice,  4  Col.  90 
(1878).  And  to  like  effect  see  Maker  v.  Overton,  9  La.  115  (1835),  Martin. 
J.,  saying:     "We  are  of  opinion  that  the  agency  of  the  drawer  is  apparent 


180  FORM THE    PARTIES    DESIGNATED. 

on  a  note  or  bill  given  by  his  agent  in  his  individual  name, 
although  he  has  admitted  the  agent's  authority.1  But  if  such 
bill  or  note  was  given  in  the  principal's  business  and  for  his 
benefit,  he  can  be  held  in  an  action  for  the  original  consid- 
eration;2 unless  he  has  been  discharged  by  the  act  of  the 
payee.  And  the  payee's  taking  the  agent's  note  with  full 
knowledge  of  the  agency  and  of  the  principal's  liability  is 
construed  to  be  such  an  act,  amounting  as  it  does  to  a  choice 
of  the  agent  as  debtor  instead  of  the  principal.3 

§  132.  Execution  by  Public  Officer. — An  exception  is  made 
to  the  rule  of  an  agent's  individual  liability  in  favor  of  pub- 
lic officers,  acting  in  their  public  capacity  with  the  knowl- 
edge of  the  other  contracting  party.  In  such  case  the  officer 
is  not  individually  liable,  in  whatever  manner  he  may  make 
the  contract  or  sign  the  bill  of  exchange,  draft  or  note  in 
question.  An  official  designation  is  not  necessary  in  the 
instrument  itself  for  his  protection,  but  it  is  usual  and  advisa- 
ble to  add  such  title.  In  all  contracts  by  a  public  officer  it 
is  presumed  that  a  party  dealing  with  him  as  such  gives 
credit  to  the  government  represented  and  not  to  the  individ- 
ual.4    A  public   officer   may,   however,    become   liable    by 

on  the  face  of  the  bill.  This  clearly  results  from  the  tenor  of  it,  in  which 
the  plaintiffs  are  directed  to  charge  the  same  to  the  account  of  the  steamer 
U.  S.  and  which  excludes  or  negatives  the  idea  of  a  personal  charge."  And 
see,  as  to  the  effect  of  such  a  clause  in  other  cases,  \  140  infra. 

1  Brown  v.  Parker,  7  Allen  337  (1863).  But  the  principal  can  be  held  by 
a  ratification  of  his  agent's  act,  Walter  v.  Trustees,  12  111.  64  (1850) ;  Paul  v. 
Berry,  78  lb.  158  (1875) ;  Dow  v.  Spenny,  29  Mo.  386  (1860) ;  First  Nat.  Bank 
v.  Gay,  63  lb.  33  (1876).  And  see  Mechanics'  Bank  v.  Bank  of  Columbia,  5 
Wheat.  326  (1820),  where  a  cashier  signed  a  check  simply  in  his  individual 
name  and  parol  evidence  was  admitted  to  hold  the  bank  for  the  act  as 
theirs. 

21  Parsons  93. 

3Hyde  v.  Paige,  9  Barb.  150  (1850) ;  Ranken  v.  De  Forest,  18  lb.  143  (1854). 

4As  to  the  rule  that  a  public  officer  is  not  individually  liable  on  his  con- 
tracts made  in  that  capacity,  see  Chitty44;  1  Daniel  417;  1  Parsons  12i' ; 
Story  on  Prom.  Notes  §  65;  Maekbeth  v.  Haldimand,  1  T.  R.  172;  Unwin  v. 
Wolseley,  lb.  674;  Myrtle  v.  Beaver,  1  East  135;  Rice  v.  Chute,  lb.  o79; 
Allen  v.  Waldgrave,  2*  Moore  627;  Gidley  v.  Palmerstone,  7  lb.  91 ;  S.  C,  3 
Brod.  &  Bing.  275;  Prosser  v.  Allen,  Gow.  117;  Jones  v  Le  Tonibe,  3  Dall. 
384  (1798) ;  Hodgson  v.  Dexter,  1  Cranch  345 ;  Bank  of  Kentucky  v.  Sanders, 
3  A.  K.  Marsh.  184  (1820) ;  Amison  v  Ewiug,  2  Coldw.  366  (1865).  This  is 
true  as  to  contracts  in  general,  Brown  v.  Austin,  1  Mass.  208  (1804)  ;  Free- 
man v.  Otis,  9  lb.  272  (1812) :  Nichols  v.  Mo  nly,  22  Barb.  611  (1856) ;  Dawes 
v.  Jackson,  9  Mass.  490  (1813);  Hodgson  v.  Dexter,  1  Cranch  315  (1S03)  ; 


OFFICIAL    ADDITIONS    TO    AGENT'S    SIGNATURE.  181 

reason  of  fraud  or  of  any  act  on  his  part  preventing  payment 
by  the  government  which  he  represents.1 

Among  the  public  officers  who  have  been  held  to  be  ex- 
empted from  individual  liability  may  be  enumerated  cabinet 
officers,2  officers  in  the  army3  and  navy,  collectors*  and  other 
treasury  officers,  foreign  ministers  and  consuls,5  State  super- 
intendents of  canals,6  and  of  State  prisons,7  sheriffs,8  State 
and  county  building  committees9  and  municipal  officers.10 

§  133.  Official  Additions  to  Agent's  Signature,  "Agent," 
&c. — Principal  not  Named. — The  signer  of  a  bill  or  note  is 
no  less  liable  individually  because  he  adds  the  word  "  agent  " 

0<horne  v.  Kerr,  12  Wend.  179  (1834);  Fox  v.  Drake,  8  Cow.  191  (1828); 
Walker  v.  Swartwout,  12  Johns.  444  (1815);  Olney  v.  Wickes,  18  lb.  122 
(1820).  But  this  was  held  to  be  a.  question  of  intention  to  be  ascertained 
from  the  terms  of  the  contract  in  Perry  v.  Hyde,  10  Conn.  330  (1834). 

'Freeman  v.  Otis,  9  Mass.  272  (1812).  And  in  Savage  v.  Rix,  9  N.  H.  263 
(1838),  road  commissioners  wrere  held  personally  liable  on  a  joint  and  several 
note  executed  "in  official  capacity"  by  reason  of  their  having  acted  with- 
out authority.  So,  in  Ross  v.  Brown,  74  Me.  352  (1883),  a  town  treasurer, 
describing  himself  as  such  in  the  body  of  the  note  and  signing  it  "A.  B., 
treasurer,"  but  having  no  authority  to  execute  it. 

2 Hodgson  v.  Dexter,  1  Cranch  345  (1803),  draft  by  the  secretary  of  war. 
As  to  the  liability  of  the  government  on  such  drafts,  see  Floyd  Acceptances, 
7  Wall.  666  (1868). 

3 Walker  v.  Swartwout,  12  Johns.  444;  Quartermaster-General,  Syme  v. 
Butler,  1  Call  105  (1796),  Deputy  Commissary -General  signing  a  contract  for 
army  stores,  "  Wm.  Aylett,  D.  C.  G.  P." 

♦Nichols  v.  Moody,  22  Barb.  611  (1856). 

sJones  v.  Le  Tombe,  3  Dall.  384. 

6Osborne  v.  Kerr,  12  Wend.  179  (1834);  or  superintendent  of  State  fair 
grounds,  Bingham  v.  Kimball,  17  Ind.  396  (1861). 

'Dawes  v.  Jackson,  9  Mass.  490  (1813). 

8Enloe  v.  Hall,  1  Humph.  303  (1839). 

9 Fox  v.  Drake,  8  Cow.  191  (1828),  commissioners  appointed  by  statute  for 
building  a  court  house;  or  county  trustees  on  a  contract  for  building  a 
bridge,  Tucker  v.  The  Justices,  13  Ired.  434  (1852);  Damerson  v.  Irwin,  8 
Ired.  421  (1848).  But  a  town  committee  for  such  purpose  in  the  form  "said 
committee  agrees,"  &c,  was  held  to  be  individually  liable  in  Sirnonds  v. 
Heard,  23  Pick.  120  (1839),  Shaw,  C.  J.,  saying  that  the  payees'  "  knowledge 
that  the  work  was  done  for  the  town  and"  was  ultimately  to  be  paid  for  by 
them  was  perfectly  consistent  with  the  fact  that  they  hail  the  personal  obli- 
gation of  the  committee  to  pay  them  for  it." 

"'An  overseer  of  the  poor  is  such  public  officer,  Olney  v.  Wickes,  18  Johns. 
122  (1820).  So,  a  municipal  committee  appointed  for  a  special  purpose, 
Randall  v.  Van  Vechten,  19  Johns.  60  (1821) ;  and  see  ii  136,  137,  infra.  Se- 
lectmen making  and  signing  a  promissory  note  in  their  official  name  with- 
out authority  have  been  held  upon  it  individually,  Underhill  v.  Gibson,  2  X. 
H.  352  (1821).  So,  too,  "the  Intendant  and  Council  of  Eutaw  "  making  a 
contract  in  such  name,  concluding  "witness  their  hands  and  seals,  A.  B., 
Int.  (seal),  C.  D.  (seal),  E  F.  (seal),"  Hall  v.  Cockrell,  28  Ala,  507  (1856). 


182  FORM — THE    PARTIES    DESIGNATED. 

to  his  name.1  And  his  individual  liability  is  not  affected  by 
his  having  ceased  to  be  the  agent  before  the  maturity  of  the 
note,  or  by  the  fact  of  no  demand  having  been  made  of  the 
principal  when  disclosed.2  But  it  has  been  held,  in  New 
York,  that  a  person  signing  a  draft  simply  "A.  B.,  agent," 
and  disclosing  his  principal  to  the  payee,  cannot  be  held 
individually;3  and  that  a  principal  who  has  not  been  named 
in  giving  such  a  note  in  his  business  may  be  held,4  and  may 
be  shown  by  parol  to  be  the  principal,  although  not  indicated 
by  anything  in  the  note  but  the  signature,  "A.  B.,  agent."5 

In  like  manner  the  mere  addition  of  an  official  title  with- 
out naming  or  otherwise  indicating,  either  in  the  signature 
or  in  the  body  of  the  instrument,  the  person  or  corporation 
in  whose  behalf  the  instrument  is  given,  leaves  the  maker  or 
drawer  in  general  individually  liable.  Such  words  are 
"  President,"  "  Secretary,"  "  Treasurer,"  "  Trustee,"  "  Super- 

1 1  Daniel  285 ;  1  Parsons  96 ;  Bartlett  v.  Hawley,  120  Mass.  92  (1876) ;  An- 
derton  v.  Shonp.  17  Ohio  St.  125  (1866);  Collins  v.  Buckeye  State  Ins.,  lb. 
215  (1867) ;  Pentz  v.  Stanton,  10  Wend.  271  (1833) ;  Bank  v.  Cook,  38  Ohio 
St.  442  (1882);  Thurston  v.  Mauro,  1  Greene  231  (Iowa  1848);  Williams  v. 
Bobbins,  16  Gray  77  (1860) ;  Manufacturers'  Bank  v.  Follett,  11  R.  I.  92 
(1874).  But  it  has  been  held  that  a  note  payable  to  the  order  of  A.  B.,  may 
be  indorsed  "A.  B.,  agent,"  without  individual  liability,  such  indorsement 
being  under  special  circumstances  in  that  case  considered  equivalent  to  a 
special  indorsement  without  recourse,  Mott  v.  Hicks,  1  Cow.  539  (1823).  As 
to  principal's  liability  on  a  note  payable  to,  and  indorsed,  by  "A.  B.,  agent," 
see  Merchants'  Bank  v.  Central  Bank,  1  Ga.  418  (1846). 

2 Hall  v.  Bradbury,  40  Conn.  32  (1873). 

3Hicks  v.  Hinde.  9  Barb.  528  (1850);  Rathbon  v.  Budlong,  15  Johns.  1 
(1818).  And  it  seems  that  there  is  no  difference  whether  such  person  be  a 
private  agent  or  an  agent  of  the  government,  lb.  It  is  said,  in  Conro  v. 
Port  Henry  Iron  Co.,  12  Barb.  27  (1851),  that  the  addition  of  the  word 
"agent  "  to  the  signature  is  of  itself  notice  that  the  party  meant  not  to  be 
bound  personally.  The  principal  was,  however,  held  in  that  case,  because 
the  name  used  on  the  bill  was  held  to  be  one  which  the  principal  had 
adopted  and  used  for  his  business  as  his  own. 

♦Moore  v.  McClure,  8  Hun  558  (1876) ;  Green  v.  Skeel,  2  Hun  485,  Mullin, 
P.  J.,  refusing  in  this  case  to  follow  De  Witt  v.  Walton,  9  N.  Y.  571,  "  if  it  is 
to  be  understood  as  deciding  that  the  principal  is  not  bound  in  any  case  by 
a  writing  signed  by  the  agent  in  his  own  name,  with  the  word  'agent' 
added."  And  the  principal  may  be  disclosed  and  held  on  such  note  by 
parol  evidence,  Moore  v.  McClure,  supra.  In  Indiana  the  principal  is  liable 
on  such  note  in  equity  but  not  at  law,  Kenyon  v.  Williams,  19  Ind.  41  (1862). 

5Rathbon  v.  Budlong,  15  Johns.  1  (1818);  Hicks  v.  Hinde,  9  Barb.  528 
(1850) ;  Green  v.  Skeel',  2  Hun  485;  Pease  v.  Pease,  35  Conn.  131  (1868) ;  or 
to  show  a  corporation  intended  by  the  simple  signature  "A.  B.,  president," 
Devendorf  v.  W.  Va.  Oil  Co.,  17  W.  Va.  138  (1880).  But  see  contra,  in  Ohio, 
Collins  v.  Buckeye  State  Ins.,  17  Ohio  St.  215  (1867). 


OFFICIAL    ADDITIONS    TO    AGENT'S    SIGNATURE.  183 

visors."1  And  it  has  been  held  that  the  cutting  off  of  the 
words  "  President"  and  "  Secretary  "  is  not  a  material  altera- 
tion, where  the  execution  of  the  instrument  is  not  denied  in 
the  plea.2  But  where  a  note  was  made  payable  to  "  R.  B., 
Treasurer,"  and  indorsed  in  like  manner  to  one  who  received 
it  for  a  debt  of  the  corporation  of  which  R.  B.  was  treasurer, 
knowing  him  to  be  acting  as  such  officer,  R.  B.  was  held  not 
to  be  liable  individually  on  his  indorsement.3 

An  exception  to  the  above  rule  as  to  the  addition  of  an 
official  title  is  made  in  favor  of  the  ordinary  usage  by  banks 
of  the  word  "cashier"  and  its  abbreviations.  It  is  customary 
to  make  negotiable  paper  intended  for  banks  payable  to  its 
cashier  as  cashier,  with  or  without  the  corporate  name  of  the 
bank  superadded.  Paper  made  payable  in  this  way  belongs 
to  the  bank  and  may  be  sued  by  it.4     And  an  indorsement 

1  Chemung  Canal  Bank  v.  Supervisors,  5  Denio  517  (1848) ;  Pease  v.  Pease, 
35  Conn.  131  (1868);  Bank  v.  Cook,  38  Ohio  St.  442  (1882);  Thackeray  v. 
Hanson,  1  Col.  365  (1871);  Trustees  of  Cahokia  v.  Rautenberg,  88  111.  *219 
(1878).  In  this  case  the  note  was  signed  A.  B.,  "school  trustees,"  but  their 
office  had  expired  before  it  was  made.  To  like  effect,  see  Witte  v.  Derby,  2 
Conn.  260  (1817),  the  bill  being  only  signed  ''C.  G.,  President,"  by  a  usage 
of  the  corporation,  although  the  statute  only  made  such  hills  binding  on 
the  corporation  as  were  signed  by  the  president  and  secretary.  And  even 
a  note  made  as  follows,  "  I,  A.  B.,  as  trustee  of  the  La.  Company,  promise, 
&c.  *  *  *  A.  B.,  trustee,  La.  Co.,"  binds  only  the  individual  maker, 
Rupert  v.  Madden,  1  Chandler  146  (1819).  So,  a  note  for  A.  B  's  individual 
debt,  signed  ''A.  B.,  trustee  of  C.  D.,"  Conn  v.  Scruggs,  5  Baxt.  567  (1873).  So, 
a  covenant  by  A.  B,  "as  trustee,"  binds  A.  B.  individually,  Duvall  v.  Craig, 
2  Wheat.  06  (1817) ;  or  a  covenant  in  a  bill  of  sale,  "we,  A.  and  B.,  trustees 
of  ('.,  promise,"  &c,  Jordan  v.  Trice,  6  Yerg.  479  (1S35).  But  a  note  run- 
ning "we,  as  trustees,  but  not  individually,  promise,"  &c,  signed  A.  B., 
"trustees,"  and  secured  by  a  trust  deed,  does  not  bind  the  makers  individu- 
ally, Shoe,  &c,  Nat.  Bank  v.  l)ix,  123  Mass.  148  (1877).  So,  too,  a  note 
■d  "A.  B.,  by  her  trustee  C.  D.,"  binds  the  trust  estate,  Taylor  v.  Shelton, 
30  Conn.  122  (1861).  So,  a  note  given  for  the  purchase  of  trust  property, 
and  signed  "A.  B.,  trustee  for  C.  D.,"  Lewis  v.  Harris,  4  Mete.  353  (Ky.  1863), 
Bui  a  note  indorsed  "A.  B.,  receiver,"  binds  only  A.  B.  individually,  Towne 
v.  Rice,  122  Mass.  67  (1877). 

2Thackeray  v.  Hanson,  1  Col.  365  (1871). 

'Babcock  v.  Beman,  11  N.  Y.  200  (1854),  affirming  1  E.  D.  Smith  593  ;  Pass- 
more  v.  Mott,  3  Binn.  201  (1S07).  See,  too,  Tradesman's  Bank  v.  Astor,  11 
Wend.  87  (1833),  where  an  association  was  held  upon  a  check  by  its  treas- 
urer, drawn  as  treasurer  of  the  association  and  overdrawing  its  account. 
So,  too,  where  a  note  or  bill  is  given  for  a  corporation  debt,  the  corporation 
has  been  held  liable  on  the  signature  "A.  B.,  president,"  Sharpe  v.  Bel  lis,  61 
Penna.  St.  69  (1869);  or  "A.  B.,  treasurer,"  Carpenter  v.  Farnsworth,  106 
M;iss.  561  (1S71) ;  or  "A.  B.  O,  rector  and  wardens,"  Episcopal  Char.  Soc.  v. 
Episc.  Ch.,  1  Pick.  372  (1823). 

'First  Nat.  Bank  y.  Hall,  44  N.  Y.  395  (1871)  :  Watervliet  Bank  v.  White, 
1  Denio  613  (1845);  Folger  v.  Chase,  18  Pick.  63.     See  also,  Hartford   Bank 


184  FOKM THE   PARTIES    DESIGNATED. 

by  the  cashier  as  "A.  B.  cashier"  renders  the  bank  and  not 
the  individual  liable  as  indorser.1  And  this  is  the  usual  and 
proper  form  of  an  indorsement  or  acceptance  for  a  bank.2 

§  134.  Signature  as  "Executor" — "Administrator" — 
"Guardian." — Where  an  executor  or  administrator  gives  a 
note  or  bill  and  signs  it  "A.  B.,  executor,"  or  "A.  B.,  admin- 
istrator," he  is  individually  liable  on  the  paper.3  And  the 
estate  which  he  represents  is  not  liable  on  the  instrument, 
even  though  it  be  given  for  a  debt  of  the  estate  or  in  other 
way  for  the  estate's  benefit.4     By  such  signature  the  indi- 

v.  Barry,  17  Mass.  94.  So,  of  an  agreement  signed  "  E.  L.,  cashier  of  the  F. 
&  M.  Bank,"  an  effort  being  made  to  hold  him  personally  in  an  action  aftei 
he  had  left  his  position  in  the  bank,  Barbour  v.  Litchfield,  4  Abb.  App.  Dec. 
655  (1859). 

'1  Daniel  389;  Bank  of  Genesee  v.  Patchin  Bank,  13  N.  Y.  309  (1855)  ;  S. 
C,  19  76.312  (1859)  ;  Bank  of  the  State  v.  Wheeler,  21  Ind.  90  (1863) ;  Collins 
v.  Johnson,  16  Ga.  458  (1854) ;  Houghton  v.  First  Nat.  Bank,  26  Wis.  663 
(1870).  And  this  is  true  even  where  the  bill  so  indorsed  was  made  payable 
to  the  order  of  "A.  B.,  cashier,"  Bank  of  State  of  N.  Y.  v.  Muskingum 
Branch,  29  N.  Y.  619  (1864),  affirming  36  Barb.  332.  See,  however,  contra, 
Bank  of  State  of  N.  Y.  v.  Farmers'  Bank,  36  Barb.  332  (1862). 

2Fleckner  v.  U.  S.  Bank,  8  Wheat.  338,  355  (1823);  Folger  v.  Chase,  18 
Pick.  63  (1836) ;  Farmers'  and  Mechanics'  Bank  v.  Troy  City  Bank,  1  Dougl. 
457  (Mich.  1844);  Burnham  v.  Webster,  19  Me.  232  (1841);  Corser  v.  Paul, 
41  N.  H.  24  (1860) ;  State  Bank  v.  Fox,  3  Blatch.  C.  C.433  (1856) ;  Houghton 
v.  First  Nat.  Bank,  26  Wis.  663  (1870) ;  Potter  v.  Merchants'  Bank,  28  N.  Y. 
641  (1864) ;  Bank  of  State  of  N.  Y.  v.  Farmers'  Branch,  36  Barb.  332,  affirmed 
29  N.  Y.  619  (1864),  mpra. 

3Byles58;  Chitty  231 ;  1  Daniel  253;  1  Parsons  161 ;  Story  on  Prom.  Notes 
§  63  ;  Peter  v.  Beverly,  10  Pet.  532  (1836) ;  Tryon  v.  Oxley,  3  Iowa  289  (1S51) ; 
Child  v.  Monins,  2  Brod.  &  B.  460;  5  Moore  281 ;  Rid  out  v.  Bristow,  1  Tyrw. 
90 ;  S.  C,  1  C.  &  J.  231 ;  Serle  v.  Waterworth,  6  Dowl.  684 ;  S.  C,  4  M.  &  W.  9  ; 
King  v.  Thorn,  1  T.  R.  489;  Nelson  v.  Serle,  4  M.  &  W.  795;  Liverpool 
Borough  Bank  v.  Walker,  4  DeG.  &  J.  24;  Gibson  v.  Minet,  1  H.  Bl.  622; 
Tassey  v.  Church,  4  Watts  &  S.  346  (1842)  ;  Greeory  v.  Leigh,  33  Tex.  S13 
(1871);  McGrath  v.  Barnes,  13  So.  Car.  328  (1879);  Greening  v.  Sheffield,  1 
Ala.  274  (1824) ;  Hostetter  v.  Hoke,  17  Kans.  81  (1876) ;  Harrison  v.  McClel- 
land, 57  Ga.  531  (1876) ;  Cornthwaite  v.  First  Nat.  Bank,  57  Ind.  268  (1877) ; 
Plimpton  v.  Goodell,  126  Mass.  119  (1879);  Kessler  v.  Hall,  64  N.  C.  6n 
(1870) ;  Yerger  v.  Foote,  48  Miss.  62  (1873) ;  Christian  v.  Morris,  50  Ala.  585 
(1874) ;  Livingston  v.  Gaussen,  21  La.  An.  286.  And  it  is  plain  that  a  de- 
cedent's estate  cannot  be  bound  by  the  signature  of  his  executor  on  a  note 
without  any  words  indicating  that  he  is  such  executor,  Martin  v.  Fitch,  65 
Ind.  216  (1878).  So,  an  acceptance  by  an  executor  or  administrator  makes 
him  individually  liable,  Chitty  346  ;  King  v.  Thorn,  supra;  Ridout  v.  Bristow, 
supra;  Aspinall  v.  Wake,  10  Bing.  51;  S.  C,  3  Moo.  &  S.  4:23.  And  this  is 
true  even  in  the  case  of  a  draft  by  a  distributee  of  the  testator's  estate  on 
the  executor  as  such,  accepted  in  like  manner,  Wisdom  v.  Becker,  52  111. 
342  (1869);  Mills  v.  Kuykendall,  2  Blackf.  47  (1827). 

*But  he  may  look  to  the  estate  for  re-i mburse men t,  Peter  v.  Beverly,  10 
Pet.  532  (1836).  And  in  Louisiana  the  -executor  may  exonerate  himself 
from  individual  liability  and  charge  the  estate,  Livingston  v.  Gaussen,  21  La 
An.  286. 


SIGNATURE   AS    EXECUTOR.  185 

vidual  becomes  liable,  although  the  estate  which  he  represents 
be  named,  e.  g.  "A.  B.,  executor  of  the  estate  of  C.  D.;"1 
and  although  he  promises  "as  executor,"  &c,  to  pay.2  But 
a  different  rule  prevails  in  Maine,  where  judgment  must  be 
rendered  de  bonis  testatoris  on  such  note.3 

An  executor  or  administrator  may  exonerate  himself  from 
personal  liability  by  confining  his  promise  to  a  payment  "out 
of  the  estate  of  A.  B.,"  &c,  by  words  to  that  effect.4  It  is 
also  to  be  remembered  that  a  valid  consideration  is  no  less 
necessary  in  promises  by  an  executor  or  administrator  than 
in  other  cases.  The  debt  of  the  deceased  is  not  of  itself  a 
sufficient  consideration  to  make  the  executor  or  administrator 
liable  beyond  such  assets  of  the  estate  as  may  remain  in  his 
hands.5  In  general  a  bill  or  note  by  a  personal  representa- 
tive of  the  deceased  debtor  requires  some  such  consideration 
as  assets  in  hand  or  forbearance  on  the  creditor's  part  to 
make  it  binding  upon  the  individual  maker.6  Such  bill  or 
note  is,  however,  prima  facie  evidence  of  assets  in  the  maker's 
hands.7 

Liverpool  Bank  v.  Walker,  4  DeG.  &  J.  24  (1859) ;  Curtis  v.  Bank  of  Som- 
erset, 7  Har.  &  J.  25  (1826) ;  Lovelace  v.  Smith,  39  Ga.  130 ;  McFarlin  v.  Stin- 
Bon,  56  lb.  396  (1876) ;  East  Tenn.  Iron  Mfg.  Co.  v.  Gaskell,  2  B.  J.  Lea  742 
(1879).  But  not  so  where  the  administratrix  is  an  infant  executing  the  note 
us  her  husband's  personal  representative,  Pool  v.  Hines,  52  Ga.  500  (1874) ; 
Kirk  man  v.  Benham,  28  Ala.  501  (1856) ;  Rittenhouse  v.  Ammerman,  64  Mo. 
197  (1876)  ;  Snead  v.  Coleman,  7  Gratt.  305  (1851);  Erwin  v.  Carroll,  1  Yerg. 
145  (1829) ;  Bradley  v.  Heath,  3  Sim.  543  (1830).  But  it  has  been  held  that 
where  such  an  acceptance  has  been  given  for  a  debt  properly  due  from  the 
estate,  the  estate  may  be  held  in  an  action  against  the  maker  as  administra- 
tor, Steele  v.  McDowell,  9  Sim.  &  M.  193  (1843). 

'Child  v.  Monins,  2  Brod.  &  B.  460;  Ashby  v.  Ashbv,  7  B.  &  C.  446;  1  M. 
&  Ry  80;  Studebaker  Mfg.  Co.  v.  Montgomery,  74  Mo.  101  (1881).  So,  in 
East  Tenn.  Iron  Mfg.  Co.  v.  Gaskell,  supra,  where  the  note  was  signed  "A. 
B.  C,  executors,"  and  read  "  we,  the  executors  of  C.  D.,  promise  as  such 
executors,"  &c. 

3  Davis  v.  French,  20  Me.  21  (1841).  But  signing  in  a  representative 
capacity  will  not  protect  him  from  individual  liability,  if  his  promise  be 
founded  on  a  sufficient  consideration,  Walker  v.  Patterson,  36  Me.  273 
(1853). 

4  Byles  58 ;  1  Daniel  255 ;  1  Parsons  161 ;  Story  on  Prom.  Notes  \  63 ;  Stude- 
baker Mfg.  Co.  v.  Montgomery,  supra. 

5Byrd  v.  Holloway,  6  Sm.  &  M.  199  (1846) ;  Rucker  v.  Wadlington,  5  J.  J. 
Marsh.  238  (1830). 
6  Rittenhouse  v.  Ammerman,  64  Mo.  197  (1876). 
7 Snead  v.  Coleman,  7  Gratt.  305  (1851). 


186  FORM THE    PARTIES    DESIGNATED. 

In  like  manner  a  guardian  signing  a  bill  or  note  as  such 
is  individually  liable  on  it;1  even  though  he  "promise  as 
guardian."2  And  such  liability  is  not  affected  by  the  fact 
that  the  so-called  guardian  has  received  his  discharge  as 
guardian  and  cannot  re-imburse  himself  out  of  his  ward's 
estate.3 

So,  the  addition  of  the  word  "surety"  to  a  maker's  signa- 
ture is  unavailing,  and  he  will  be  held  individually  notwith- 
standing such  addition.4  Such  addition  has  been  held  to  be 
wholly  immaterial,5  but  in  another  case  it  is  said  to  be  a  ma- 
terial alteration.6  On  the  other  hand,  a  note  made  to  and 
indorsed  by  "A.  B.,  assignee,"  has  been  held  not  to  make  A. 
B.  individually  liable.7 

§  135.  Corporation  and  Official  Signatures — In  Principal's 
Name. — "Where  a  commercial  instrument  is  made  expressly 
in  the  name  of  a  corporation  or  other  principal,  the  intention 
to  bind  the  principal  is  manifest,  and  the  paper  drawn  or 
signed  in  this  way  will  be  taken  to  be  his  contract  and  not 
that  of  the  agent.  To  avoid  personal  liability  the  corpora- 
tion officer  or  other  agent  signing  a  bill,  note  or  check, 
should  make  the  promise  expressly  in  his  principal's  name, 

1  Robertson  v.  Banks,  1  Sm.  &  M.  666  (1844) ;  Poole  v.  Wilkinson,  42  Ga. 
539  (1871);  Coons  v.  Kendall,  27  La.  An.  443  (1875);  Carter  v.  Wolfe.  1 
Heisk.  694  (1870).  So,  as  to  covenants  in  a  deed,  Whiting  v.  Dewey,  15 
Pick.  428  (1834).  But  the  rule  is  different  in  Louisiana,  and  the  ward's 
estate  may  be  charged  by  a  note  made  in  conformity  with  an  order  of  the 
probate  court  and  signed  by  "A.  B.,  tutor,"  Coons  v.  Kendall,  27  La.  An.  443 
(1875) ;  or  even  by  drafts  drawn  by  "A.  B.,  tutor,"  to  his  own  order  for  sup- 
plies of  his  ward's  plantation  and  indorsed  simply  "A.  B.,"  Lapeyre  v. 
Weeks,  28  La.  An.  664  (1876). 

2Forster  v.  Fuller,  6  Mass.  58  (1809),  the  words  relating  to  the  guardianship 
being  only  inserted  as  was  held,  "  to  entitle  himself  to  indemnity  from  his 
ward." 

sThacher  v.  Dinsmore,  5  Mass.  299  (1809). 

Mnkster  v.  First  Nat.  Bank,  30  Mich.  143  (1874).  "The  case  of  Pain  v. 
Packard,  13  Johns.  174  (which  has  been  followed  in  New  York  not  without 
some  vigorous  protests,  and  to  some  extent  in  some  other  States)  was,  we 
think,  a  clear  departure  from  the  common  law,  and  we  find  nothing  in  the 
English  decisions  to  warrant  the  qualifications  of  surety's  liabilities  there 
recognized,"  Christiancv,  J.,  lb.  p.  148.  So,  too,  Rice  v.  Cook,  71  Me.  559 
(1880) ;  Hughes  v.  Littlefield,  18  lb.  400. 

5Kleckner  v.  Klapp,  2  Watts  &  S.  44  (1811). 

"Lamb  v.  Price,  46  Iowa  550  (1877.). 

7Bowne  v.  Douglass,  38  Barb.  312. 


CORPOEATIOX    AND    OFFICIAL   SIGNATURES.  187 

either  by  the  words  of  promise  in  the  body  of  the  instru- 
ment or  by  the  signature.  As  in  other  parts  of  a  bill  or 
note,  no  particular  form  is  requisite,  but  all  uncertainty  must 
be  carefully  avoided. 

A  promise  in  the  name  of  the  principal,  although  not 
signed  by  his  name,  is  the  contract  of  the  principal  and 
not  of  the  agent.  Thus,  a  promissory  note  reading,  "  The 
Patent  Cloth  Manufacturing  Company  promise,"  &c,  and 
signed  "  W.  S.,  agent,"  is  the  note  of  the  corporation.1  So, 
a  note  running  thus  :  "  The  Newport  Manufacturing  Com- 
pany promises,"  &c,  and  signed  "J.  W.  T.,  treasurer;"2  or, 
"  The  Ocean  Mining  Company  promises,"  and  signed  "A.  B., 
trustee.3  So,  too,  a  contract  in  the  words,  "  We,  the  Apple- 
ton  Fire  Insurance  Co.,  by  A.  B.,  President,  are  held,"  &c, 
signed  "A.  B.,  President,"  with  a  common  seal  affixed  to  the 
signature,  was  held  to  be  obligatory  only  on  the  corporation.4 
In  like  manner,  the  note  of  a  voluntary  association,  "  The 
M.  M.  Co.  promises,"  &c,  signed  "A.  B.,  C.  D.,  Directors," 
is  binding  upon  all  the  members  of  the  association.6     So,  the 

^hotwell  v.  McKown,  2  South.  828  (1820).  See,  too,  Jefts  v.  York,  4  Cush. 
371  (1849) ;  S.  C,  10  lb.  392  (1852),  where  the  note  ran  thus :  "The  pastor 
and  deacons  of  the  First  Baptist  Church,  in  behalf  of  said  church,  promise, 
&c.  *  *  *  S.  D.  G.,  agent  for  the  First  Bapt.  Ch."  So,  a  sealed  contract 
in  the  company's  name,  signed  "A.  B.,  agent  for  the  Del.  &  H.  Canal  Co.," 
is  a  corporate  contract,  Dubois  v.  Del.  &  H.  C.  Co.,  4  Wend.  285  (1830).  But 
a  sealed  contract  of  sale  by  T.,  "by  B.  his  attorney,"  signed  by  B.,  "  as  at- 
torney of  T.,"  was  held  not  to  be  T.'s  contract  in  Townsend  v.  Hubbard,  4 
Hill  351  (1S42). 

'Commercial  Bank  v.  Newport  Mfg.  Co.,  1  B.  Mon.  13  (1840);  Moor  v. 
Wilson,  26  N.  H.  332  (1853).  See,  too,  Hall  v.  Auburn  Turnpike  Co.,  27  Cal. 
255  (1865) ;  Hall  v.  Crandall,  29  lb.  567  (1866).  And  such  a  contract  is  bind- 
ing upon  the  corporation  and  not  the  individual,  although  a  common  seal 
is  added  to  the  signature,  "A.  B.,  President,"  Hopkins  v.  Mehaflfy,  11  Serg. 
&  R  126  (1824).  This  is  also  the  character  and  proper  construction  of  a 
note,  in  form,  "We,  the  inhabitants  of  School  District  No.  12,  promise," 
&c,  signed  "A.  B.,  treasurer,"  Whitney  v.  Stow,  111  Mass.  368  (1873).  So,  a 
note,  "We,  the  H.  C.  Agric.  Association,  by  her  directors,  do  promise,  &c, 
A.  B.,  Secretary,  C,  D.,  E.  F.,  Directors  of  the  H.  C,  &c,  Assoc,"  Arm- 
strong v.  Kirkpatrick,  79  Ind.  527  (1881). 

(  'Shaver  v.  Ocean  Mining  Co.,  21  Cal.  46  (1862).  So,  a  township  certificate 
"that  there  is  due  from  the  township  *  *  *  for  school  furniture,"  signed 
"  H.  B,  trustee  of  Johnson  township,"  binds  the  township,  Johnson  School 
Township  v.  Citizens'  Bank,  81  Ind.  515  (1882). 

4 Ellis  v.  Pulsifer,  4  Allen  165  (1862). 

5McGreary  v.  Chandler,  58  Me.  537  (1870). 


188  FORM THE    PARTIES    DESIGNATED. 

note  of  a  partnership  using  a  corporation  name  and  signed 
"A.  B.,  Treasurer."1 

A  promise  signed  in  the  principal's  name,  is  also  bis  con- 
tract and  not  that  of  the  agent,  although  the  principal  be 
not  indicated  in  the  body  of  the  instrument.2  This  is  true 
of  an  indorsement  in  the  words,  "  Marine  Bank,  by  J.  S.  H., 
President."3  So,  a  note  signed  "Steamboat  Ben  Lee  and 
owners,  by  W.  R.,  Capt,"  is  binding  upon  the  owners.4  So, 
a  note  signed  "  For  the  Providence  Hat  Manufacturing 
Company,  F.  R  ;"5  or  "For  the  M.  Iron  Works,  A.  B., 
President,  C.  D.,  Secretary."6  So,  a  note  beginning  "We 
promise,"  &c,  and  signed  "A.  &  Co.,  A.  B.,  President."7 
So,  the  acceptance  of  a  draft  drawn  by  the  Empire  Mills  on 
E.  C.  H.  in  the  words  "Accepted,  Empire  Mills,  by  E.  C.  H., 
treasurer,"  is  the  company's  acceptance  and  not  that  of  the 
individual.8  So,  a  note  beginning,  "  We  promise,"  &c,  and 
concluding,  "  Witness  our  hands  and  seals,  A.  B.,  for  C.  D. 
&  Co.,"  is  the  note  of  C.  D.  &  Co.9  And  the  corporate 
character  is  still  more  plain  in  a  note  reading,  "  We,  the 
President  and  Directors  of  the  C.  S.  M.  Co.  promise,"  &c, 
signed,  "A.  B.,  President,"  and  sealed  with  the  corporation 
seal.10 

1  Walker  v.  Wait,  50  Vt.  668  (1878). 

2Euffin  v.  Mebane,  6  Ired.  Eq.  507  (1850).  And  although  the  agent  be 
not  authorized  to  give  the  note  in  question,  the  principal  will  be  liable  for 
goods  purchased  for  him  and  by  his  authority,  for  which  the  note  was  given, 
lb.     So,  too,  Emerson  v.  Providence  Mfg.  Co.,  12  Mass.  237  (1815). 

3Aiken  v.  Marine  Bank,  16  Wis.  713  (1863). 

*Sandera  v.  Anderson,  21  Mo.  402  (1855).  So,  too,  an  acceptance  by  "A. 
B.,  Capt.,"  of  a  bill  drawn  on  "The  owners  of  the  Steamboat  Messenger," 
May  v.  Hewitt,  33  Ala.  161  (1858). 

5  Emerson  v.  Providence  Mfg.  Co.,  12  Mass.  237  (1815). 

6Roney  v.  Winter,  37  Ala.  277  (1861). 

'Atkins  v.  Brown,  59  Me.  90  (1871) ;  Castle  v.  Belfast  Foundry  Co.,  72  Me. 
167  (1881),  15  Am.  L.  Rev.  358;  Draper  v.  Mass,.  Steam  Heating  Co.,  5 
Allen  338  (1862).  So,  a  note  reading,  "  We,  the  trustees  of  the  P.  W.  Bapt. 
Soc,  promise,"  &c,  and  signed  with  the  corporate  name  and  the  individual 
names  of  the  trustees,  is  properly  executed  as  the  note  of  the  corporation, 
Gillet  v.  New  Market  Sav.  Bank,  7  Bradw.  499  (1880). 

8  Walker  v.  Bank  of  the  State  of  New  York,  9  N.  Y.  582  (1854). 

9 Cook  v.  Sanford,  3  Dana  237  (1835). 

10 Pitman  v.  Kintner,  5  Blackf.  250  (1839).  As  to  the  effect  of  a  corporate 
seal  in  defining  the  character  of  such  a  paper,  see  §  138,  infra. 


LIABILITY    OF    UNAUTHORIZED    AGENTS.  189 

The  fact  that  a  bill  or  note  is  given  in  a  form  proper  to 
bind  the  principal  and  not  the  agent  who  executes  it,  can- 
not, of  course,  preclude  the  principal  from  any  defense  that 
he  may  have  by  reason  of  the  want  of  authority  in  the  agent 
or  the  absence  of  any  consideration  to  himself.1  If,  however, 
the  instrument  is  plainly  executed  as  the  contract  of  the 
principal  and  not  of  the  agent,  and  it  appears  that  the  agent 
had  no  authority  to  execute  it,  it  often  becomes  a  question 
of  importance  whether  the  unauthorized  agent  has  made 
himself  liable  as  maker,  drawer,  acceptor  or  indorser  of  the 
paper  in  controversy.  That  the  agent  in  such  case  is  liable 
for  false  warranty,  deceit  or  in  other  form  is  admitted.2  And 
the  rule  seems  to  be  established  by  the  American  cases,  that 
as  to  contracts  other  than  negotiable  instruments  an  agent, 
acting  in  the  principal's  name  without  his  authority,  makes 
himself  individually  liable  on  the  contract.3.  Whether  this 
rule  is  applicable  to  commercial  paper  is  a  question  upon 
which  authorities  are  divided.4  It  has  been  held  that  an 
agent  accepting  a  bill  without  authority  in  his  principal's 
name  renders  himself  liable  for  the  tort  but  not  on  the  bill 
as  an  acceptor.5  And  this  seems  to  be  the  rule  generally 
followed  by  the  English  cases  and  by  the  better  and  more 

1Hall  v.  Auburn  Turnpike  Co.,  27  Cal.  255  (1865). 

2West  London  Com.  Bank  v.  Kitson,  L.  R.  13  Q.  B.  D.  360  (1884);  Mc- 
Henry  y.  Duffield,  7  Blackf.  41  (1843).  And  a  bank  president,  who  has 
made  himself  liable  personally  by  an  indorsement  for  the  bank  in  excess 
of  the  amount  of  debt  authorized  by  its  charter,  will  not  be  discharged  from 
the  tort  by  the  release  of  an  accommodation  acceptor,  who  was  liable  on 
the  bill,  Brannin  v.  Loring,  20  Cent.  L.  J.  57  (Ky.  S.  C.  1884). 

3Meech  v.  Smith,  7  Wend.  315  (1831);  Bay  v.  Cook,  2  Zab.  343  (1S50); 
Feeter  v.  Heath,  11  Wend.  479  (1833).  So,  too,  upon  a  covenant  under  seal, 
White  v.  Skinner,  13  Johns.  307  (1816).  But  see,  contra,  as  to  simple  con- 
tracts, Jenkins  v.  Hutchinson,  13  Q.  B.  744  (1849);  Lewis  v.  Nicholson,  18 
lb.  503  (1852) ;  Woodes  v.  Dennett,  9  N.  H.  55  (1837) ;  and  infra  as  to  sealed 
contracts. 

4 Story  on  Prom.  Notes  g  71. 

5Byles  39;  Chitty  47;  1  Daniel  286;  Polhill  v.  Walter,  2  B.  &  Ad.  114. 
But  if  he  had  signed  the  drawer's  name  without  authority,  queere,  whether 
he  would  not  have  been  personally  liable  on  the  bill  as  drawer,  Wilson  v. 
Barthrop,  2  M.  &  W.  863.  "At  all  events,  in  order  to  make  him  so  liable, 
it  is  incumbent  on  the  plaintiff  to  prove  the  want  of  authority  and  that  the 
defendant  did  not  act  bona  fide,"  Chitty  48. 


190  FORM THE    PARTIES   DESIGNATED. 

recent  American  authorities.1     There  are,  however,  authori- 
ties of  some  weight  to  the  contrary.2 

§  136.  Principal  Named  only  in  Agent's  Official  Title — In 
Instrument. — Merely  naming  the  principal,  either  in  the  body 
of  the  instrument  or  in  the  signature,  does  not  of  itself 
make  the  contract  even  apparently  that  of  the  principal. 
This  occurs  most  frequently  in  bills  of  exchange  and  other 
papers  executed  by  corporation  officers  using  their  full  offi- 
cial title,  which  includes  the  name  of  their  principal,  the 
corporation.     In  general  such  titles,  however  fully  the  prin- 

n  Daniel  286  ;  Bartlett  v.  Tucker,  104  Mass.  336  (1870) ;  Ballon  v.  Talbot, 
16  Mass.  461  (1S20) ;  Jefta  v.  York,  4  Cush.  391  (1849) ;  S.  C,  10  lb.  392  (1852) ; 
Hancock  v.  Yunker,  83  111.  208  (1876) ;  Lander  v.  Castro,  43  Cal.  497  (1872) ; 
Hall  v.  Crandall,  29  Cal.  567  (1866);  McHenrv  v.  Duffield,  7  Blackf.  41 
(1843);  Harkins  v.  Edwards,  1  Iowa  426  (1855);  Sheffield  v.  Ladue,  16 
Minn.  3S8  (1871);  Delius  v.  Cawthorn,  2  Dev.  90  (1829);  Moor  v.  Wilson, 
26  N.  H.  332  (1853).  So,  too,  an  agent  signing  a  sealed  instrument  in  the 
name  of  his  principal  without  authority,  is  not  liable  on  it,  Abbey  v.  Chase, 
6  Cush.  54  (1850) ;  Hopkins  v.  Mehaffy,  11  Serg.  &  R.  128  (1824),  Gibson,  J., 
disapproving  in  this  respect  Chitty  PI.  24  and  Tippets  v.  Walker,  4  Mass. 
595.  In  this  latter  case,  however,  the  agents  had  "expressly  bound  them- 
selves." Neither  will  an  agent,  whose  authority  has  expired  by  the  death 
of  his  principal,  be  bound  personally  by  a  deed  executed  in  his  principal's 
name,  Harper  v.  Little,  2  Me.  14  (1822) ;  Stetson  v.  Patten,  lb.  358.  See, 
further,  as  to  the  liability  of  an  agent  contracting  without  authority  in  his 
principal's  name,  the  remarks  of  Ellsworth,  J.,  in  Ogden  v.  Raymond,  22 
Conn.  385  (1853). 

21  Parsons  105 ;  Dnsenburv  v.  Ellis,  3  Johns  Cas.  70  (1802)  ;  Grafton  Bank 
v.  Flanders,  4  N.  H.  239  (1827);  Rossiter  v.  Rossiter,  8  Wend.  494  (1832); 
Weare  v.  Gove,  44  N.  H.  196  (1862);  Roberts  v.  Button,  14  Vt.  195  (1842). 
This  was  also  held  in  the  case  of  a  note  running  "we  promise,"  &c,  and 
signed  "  G.  Stephens,"  and  under  that  the  initials  "  W.  G.  S."  Here  it  was 
claimed  that  "  W.  G.  S."  signed  merely  as  agent  for  G.  S.  &  Co.,  of  which 
firm  he  was  not  a  member,  but  was  the  authorized  agent.  But  the  note 
being  signed  with  the  individual  name  of  G.  S.,  for  whom  he  was  not  author- 
ized to  act,  W.  G.  S.  was  held  personally  liable,  Palmer  v.  Stephens,  1 
Denio  472  (1845).  So,  an  unauthorized  agent  who  signed  with  his  individual 
name  a  note  reading  "The  steamer  Tecumseh  and  owners  promise,"  &c, 
Ormsby  v.  Kendall,  2  Ark.  338  (1840).  So  one,  who  made  a  note  without 
authority  in  the  simple  form,  "I  promise,"  &c,  and  signed  it,  "A.  B.,  attor- 
ney for  C.  D.,"  was  held  on  it  personally  in  Byars  v.  Doores,  20  Mo.  284 
(1855).  So,  where  a  note  read  "We.  the  Selectmen  of  R,  promise,"  &c, 
and  was  signed,  "A.,  B.,  Selectmen,"  Underhill  v.  Gibson,  2  N.  H.  352  (1821). 
And  so,  too,  of  a  joint  and  several  note  signed  by  Road  Commissioners  in 
their  "  official  capacity,"  Savage  v.  Rix,  9  N.  H.  263  (1838).  So,  too,  an 
agent,  without  authority  to  execute  a  note  for  a  firm,  but  signing  it  and 
holding  himself  out  as  a  member  of  the  firm,  is  liable  on  it,  Dodd  v.  Bishop, 
30  La.  An.  1178  (1878).  And  it  is  said  that  an  agent,  executing  a  note  with- 
out authority,  is  liable  on  an  implied  warranty  of  authority,  White  v.  Madi- 
son, 26  N.  Y.  124  (1862).  And  if  liable  on  the  contract,  it  seems  that  he  ia 
so  only  where  he  "had  no  authority  in  fact  to  use  the  name  of  his  princi- 
pal," Selden,  J.,  in  Walker  v.  Bank  of  State  of  New  York,  9  N.  Y.  585  (1854). 


PRINCIPAL  NAMED  ONLY  IN  AGENT'S  OFFICIAL  TITLE.     191 

cipal  be  named  in  them,  are  to  be  considered  as  a  mere 
descriptio  personce,  and  the  agent  executing  the  paper  re- 
mains individually  liable  upon  it,  and  the  corporation  is  not 
bound. 

Thus,  first,  in  the  instrument :  a  promissory  note,  in  form, 
"  We,  the  Trustees  of  the  Methodist  Episcopal  Church  of  A., 
promise,"  &c,  binds  the  individual  signers  only.1  So,  too, 
a  note,  in  form,V  I,  J.  F.,  President  of  the  Mechanics'  In- 
surance Company,  promise,"  &c.  ;2  or,  "We,  the  trustees  of 
the  Methodist  Episcopal  Society  for  building  a  parsonage 
house,  promise,"  &c,  although  in  this  case  a  corporate  con- 
sideration and  purpose  appeared  to  be  plainly  designated.3 
Likewise,  on  a  note,  in  form,  "We,  the  Trustees  of  the 
Methodist  Episcopal  Church,  promise,"  &c,  signed  "A.,  B., 
C,  trustees  of  -the  Meth.  Episc.  Ch.,"  the  persons  signing 
were  held  to  be  individually  and  alone  liable;4  and  so,  a 
fortiori,  on  a  note,  in  form,  "  We,  the  Trustees  of  the  Pres- 
byterian Church,  promise,"  &c,  signed  merely  "A.,  B.,  C, 
trustees."5  In  the  other  cases  above  mentioned  the  signa- 
ture consisted  simply  of  the  name  with  no  official  title  added.6 

'Packard  v.  Nye,  2  Mete.  47  (1840);  Hypes  v.  Griffin,  89  111.  134  (1878); 
Fogg  v.  Virgin,  19  Me.  352  (1841).  And  this  is  true,  a,  portion  of  a  joint  and 
several  bond,  in  like  form  signed  with  the  individual  names,  with  common 
seals,  and  no  official  addition  to  their  signatures,  Drayton  v.  Warne,  14 
Vroom  659  (1881).  But  a  note,  "  We,  the  subscribers  for  the  Carmel  Cheese 
Manufacturing  Co.,  promise,"  &c,  signed  with  the  individual  names  of  the 
directors  and  given  for  a  corporation  purpose  by  its  authority,  was  held  to 
be  the  note  of  the  corporation  in  Simpson  v.  Garland,  72  Me.  40  (1881),  24 
Alb.  L.  J.  353. 

•Barker  v.  Mechanics'  Ins.  Co.,  3  Wend.  94  (1829). 

"Chick  v.  Trevett,  20  Me.  462  (1841). 

*Meare  v.  Graham,  S  Blackf.  144  (1846).  But  see,  contra,  New  Market 
Bav.  Bank  v.  Gillet,  100  111.  254  (1881). 

&Powers  v.  Briggs,  79  111.  493  (1875).  This  particular  decision,  although 
correctly  following  the  cases  last  cited,  appears  to  have  turned  on,  or  at 
least  emphasized,  the  fact  that  the  note  did  not  appear  to  be  the  act  of  the 
corporation.  A  similar  case  is  that  of  a  lease  made  by  "A.  B.,  treasurer  of  the 
Eagle  Lodge,"  and  signed  "A.  B.,  treasurer."  In  that  case,  A.  B.  was  held 
to  be  personally  liable,  Seaver  v.  Colburn,  10  Cush.  324  (1852).  So,  too,  on 
a  sealed  covenant  signed  by  a  committee  of  turnpike  company  directors 
appointed  for  building  the  road  and  so  describing  themselves,  Tippets  v. 
Walker,  4  Mass.  595  (1808). 

'Barker  v.  Mechanics'  Ins.  Co.,  3  Wend.  94  (1829);  Packard  v.  Nye,  2 
Mete.  47  (1840);  Fogg  v.  Virgin,  19  Me.  352  {1841);  Chick  v.  Trevett,  2*0  lb. 
462(1841);  Hvpes  v.  Griffin,  89  III.  134(1878,. 


192  FORM THE    PARTIES    DESIGNATED 

The  individual  signers  were  held  personally  in  like  manner 
on  a  note,  in  form,  "  We,  or  either  of  us,  Directors  of  the 
T.  Company,  promise,"  &c,  signed  "A.  B.,  President,  C.  D., 
E.  F.,"  the  form  of  the  promise  seeming  to  indicate  this  con- 
struction.1 And  a  similar  construction  has  been  given  to  a 
note,  in  form,  "  We,  the  Directors  of  the  A.  B.  Company, 
promise,"  &c,  signed  "  C,  D.,  E.,"  and  sealed  with  the  cor- 
poration seal.2  The  same  construction  was  followed  in  a  note, 
in  form,  "  We,  the  Selectmen  of  R.,  promise,"  &c,  signed 
"A.,  B.,  Selectmen,"  although  the  conclusion  in  this  case 
seems  to  have  been  derived  from  the  fact  that  the  public 
officers  signing  the  note  acted  without  sufficient  authority  in 
so  doing.3  In  the  case  of  a  note  similar  to  the  foregoing,  in 
form,  "  We,  the  Trustees  of  School  District  No.  100,  prom- 
ise," &c,  signed  "A.,  B.,  Trustees,"  it  has  been  held  that  the 
individual  signers  were  prima  facie  liable,  but  might  dis- 
charge themselves  by  proving  that  they  acted  merely  as 
agents.4  As  to  the  general  effect  of  parol  evidence  in  such 
cases  the  reader  is  referred  to  a  subsequent  part  of  this 
chapter. 

On  the  other  hand,  it  was  held  in  an  early  case,  which 
cannot  now  be  considered  of  any  authority,  that  a  note,  in 
form,  "I,  A.  B.,  treasurer  of  the  D.  T.  Company,  promise," 
&c,  signed  "A.  B.,  treasurer  of  the  D.  T.  Co.,"  bound  the 
company  and  not  the  agent  who  signed  it.5  And  an  excep- 
tion to  the  rule  laid  down  above  seems  to  have  been  made  in 

'Whitney  v.  Sudduth,  4  Mete.  296  (Ky.  1863). 

2Dutton  v.  Marsh,  L.  R.  6  Q.  B.  361  (1871). 

'Underbill  v.  Gibson,  2  N.  H.  352  (1821). 

4 Bingham  v.  Stewart,  13  Minn.  106  (1868). 

5Mann  v.  Chandler,  9  Mass.  335  (1812).  Speaking  of  this  case  Judge  Gray 
said  in  Barlow  v.  Cong  Society,  8  Allen  461 :  "That  case,  although  it  has 
never  been  in  terms  overruled,  has  never  been  followed  in  this  common- 
wealth, can  hardly  be  reconciled  with  the  later  decisions,  and  must  be 
maintained,  if  at  all,  upon  the  ground  that  the  treasurer  of  a  corporation 
is,  by  virtue  of  his  office,  the  hand  by  which  the  corporation  conducts  all  its 
pecuniary  affairs,  signs  all  its  commercial  paper  and  pays  all  its  debts. 
*  *  *  All  the  decisions  of  this  court  upon  unsealed  instruments  since 
the  case  of  Mann  v.  Chandler  have  required  something  more  than  a  mere 
description  of  the  general  relation  between  the  agent  and  the  principal  in 
order  to  make  them  the  contracts  of  the  latter." 


PRINCIPAL  NAMED  ONLY  IN  AGENT'S  OFFICIAL  TITLE.     193 

favor  of  the  term  "president  and  directors,"  as  being  at  least 
a  quasi-corporate  name.  Thus,  a  note,  in  form,  "The  Presi- 
dent and  Directors  of  the  A.  B.  Company,  promise,"  &c,  has 
been  held  to  be  a  corporation  note.1  Other  cases  have  held 
that  in  a  note  of  this  form  signed  "A.,  president,  B.,  C, 
directors,"  parol  evidence  is  admissible  to  show  a  corporation 
note  intended.2  So,  too,  a  note,  in  form,  "We,  the  inhabi- 
tants of  School  District  No.  12,  promise,"  &c,  signed  "A.  B., 
treasurer,"  is  the  note  of  the  School  District  and  not  of  A. 
B.3  So,  too,  the  following  notes  of  school  or  other  municipal 
officers:  "We,  the  undersigned  directors  of  School  District 
No.  4,  promise,"  &c,  signed  with  their  names  simply  ;4  "We, 
the  undersigned  committee  for  the  First  School  District, 
promise,"  &c,  signed  "A.,  B.,  C,  committee;"6  "I,  A.  B., 
director  of  District  No.  2,  promise,"  &c,  signed  "A.  B., 
director."6  So,  too,  a  contract  under  seal  by  "A.,  B.,  C,  a 
committee  appointed  by  the  corporation  of  Albany  for  the 
purpose,"  is  a  contract  of  the  municipal  corporation  and  not 
of  the  individual  members  of  the  committee.7  So,  a  promis- 
sory note  in  the  name  of  "The  Pastor  and  Deacons  of  the 
First  Baptist  Church  in  behalf  of  said  church,"  signed,  "S. 
D.  G.,  agent  for  the  First  Bapt  Ch.,"  binds  the  church  and 
not  the  agent  personally.8 

§  137.  Principal  Named  only  in  Agent's  Official  Title — In 
Signature. — Secondly,  in  the  signature  the  principal's  name 
may  occut  as  a  mere  descriptio  personce  completing  the  official 

ll  Daniel  376;  1  Parsons  169;  Story  on  Prom.  Notes  \  69;  Mott  v.  Hicks, 
1  Cow.  513  (1823).  Especially  so  if  executed  under  the  corporate  seal,  Pit- 
man v.  Kintner,  5  Blackf.  250  (1839). 

2Yowell  v.  Dodd,  3  Bush  581  (1868) ;  Haile  v.  Pierce,  32  Md.  327  (1869). 

"Whitney  v.  Stow,  111  Mass.  368  (1873).  This  note  may  be  properly  re- 
garded as  one  given  in  the  principal's  name. 

4  Baker  v.  Chambles,  4  Greene  428  (Iowa  1854).  See,  too,  Sanborn  v.  Neal, 
4  Minn.  126  (18(H)),  where  the  note  read,  "We,  as  trustees  of  School  District 
No.  10,  promise,"  &c.  And  as  to  the  effect  of  the  word  "as"  and  others 
like  it,  see  infra. 

&Andrews  v.  Estes,  11  Me.  267  (1834). 

6McGee  v.  Larramore,  50  Mo.  425  (1872). 

'Randall  v.  Van  Vechten,  19  Johns.  60  (1821). 

8  Jefts  v.  York,  4  Cush.  391  (1849) ;  S.  C,  10  lb.  392  (1852). 

N 


194  FORM THE    PARTIES    DESIGNATED. 

title  of  the  agent  who  signs  the  instrument.  In  such  cases 
the  note  or  bill  is  that  of  the  agent  only,  although  authorities 
are  somewhat  at  variance  in  the  matter.1  In  like  manner  a 
bill  of  exchange  drawn  on  The  Piscataqua  F.  &  M.  Ins.  Co. 
signed  "D.  F.  &  Co.,  agts.  Piscataqua  F.  &  M.  Ins.  Co.," 
binds  the  individuals  only.2  So,  too,  a  promissory  note 
signed  "A.  B.,  trustees  of  the  Baptist  Society;"3  or  a  bond 
signed  "A.  B.,  trustees  of  the  First  Universalist  Church,"4 
is  the  note  or  bond  of  the  individuals  only.  Of  the  same 
force  is  a  note  signed  in  that  manner  and  also  naming  the 
principal  in  the  body  of  the  instrument  in  such  words  as 
"We,  the  trustees  of  the  Methodist  Episcopal  Church 
promise,"  &c.5     And  in  England  the  same  construction  has 

1<l The  addition  of  official  character  to  the  signature  at  the  foot  of  the 
note  will  not  of  itself  be  sufficient  to  indicate  an  intention  to  bind  the  cor- 
poration, but  will  be  regarded  merely  as  an  ear-mark  or  descriptio  personae," 
1  Daniel  Negot.  Inst.  329.  See  also,  for  criticism  of  Prof.  Parsons'  view,  p. 
331.  This  is  the  rule  whether  the  officer  sign  his  name  as  President,  Burbank 
v.  Posey's  Admr.,  7  Bush  372  (1870) ;  Chamberlain  v.  Pacific  Wool,  &c,  Co., 
54  Cal.  103  (1880) ;  Moss  v.  Livingston,  4  N.  Y.  208  (1850) ;  Scott  v.  Baker,  3 
W.  Va.  285  (1869) ;  Barker  v.  Mechanics'  F.  I.  Co.,  3  Wend.  94  (1829) ; 
Treasurer,  Bruce  v.  Lord,  1  Hilt.  247  (1856) ;  Sheridan  v.  Carpenter,  61  Me. 
83  (1872)  ;  Sturdivant  v.  Hull,  59  lb.  172  (1871) ;  Sumwalt  v.  Ridgely,  20  Md. 
107  (1863) ;  Smith  v.  Alexander,  31  Mo.  193  (1860)  ;  Mellen  v.  Moore,  68  Me. 
390  (1878) ;  Secretary,  Drake  v.  Flewellen,  33  Ala.  106  (1858)  ;  Agent,  Haight 
v.  Navlor,  5  Daly  219  (1874) ;  Trustee,  Williams  v.  Second  Nat.  Bank,  83  Ind. 
237  (1882) ;  McClellan  v.  Robe,  93  Ind.  298  (1883) ;  contra.  School  Town  of 
Monticello  v.  Kendall,  72  lb.  91;  or  by  some  other  title.  In  all  the  Indiana 
cases  above  cited  the  consideration  went  to  the  corporation. 

2Tucker  Mfg.  Co.  v.  Fairbanks,  9S  Mass.  101  (1867),  Gray,  J.,  saying,  p. 
104:  "  In  order  to  exempt  an  agent  from  liability  upon  an  instrument  exe- 
cuted by  him  within  the  scope  of  his  agency,  he  must  not  only  name  his 
principal,  but  he  must  express  by  some  form  of  words  that  the  writing  is  the 
act  of  the  principal,  though  done  by  the  hand  of  the  agent.  If  he  expresses 
this,  the  principal  is  bound  and  the  agent  is  not.  But  a  mere  description  of 
the  general  relation  or  office  which  the  person  signing  the  paper  holds,  to 
another  person  or  to  a  corporation,  without  indicating  that  the  particular 
signature  is  made  in  the  execution  of  the  office  and  agency,  is  not  sufficient 
to  charge  the  principal  or  to  exempt  the  agent  from  personal  liability." 

3  Brock  way  v.  Allen,  17  Wend.  40  (1837),  although  really  made  for  the  bene- 
fit of  the  society,  the  holder  having,  however,  no  notice  of  that  fact,  Havs  v. 
Crutcher,  54  Ind.  260  (1876) ;  Fiske  v.  Eldridge,  12  Gray  474  (1859) ;  Fowler  i>. 
Atkinson, 6Minn. 578(1861);  Connerv.  Clark,  12Cal.lH8  (1859);  Hayes  v.  Mat- 
thews, 63  Ind.  412  (1878) ;  Hayes  v.  Brubaker,  65  lb.  27  (1878),  although  actu- 
ally made  for  the  church  and  without  consideration  of  any  sort  to  the  trustees. 

4Taft  v.  Brewster,  9  Johns.  334  (1812) ;  Hills  v.  Bannister,  8  Cow.  1  (1827). 

5Mears  v.  Graham,  8  Blackf.  144  (1846).  So,  too,  a  bond  by  one  named  in 
the  body  of  the  instrument  and  the  signature  as  "  trustee  of  Columbia  town- 
ship," Hobbs  v.  Cowden,  20  Ind.  310  (1863).  But  see,  contra,  the  case  of  a 
note  signed  by  a  treasurer  in  Mann  v.  Chandler,  9  Mass.  335  (1812),  and  re- 
marks upon  it  in  note  to  \  136  supra. 


PRINCIPAL  NAMED  ONLY  IN  AGENT'S  OFFICIAL  TITLE.     195 

been  applied  to  a  churchwardens'  note,  made  for  the  parish 
and  by  authority  of  a  vote  of  the  vestry,  and  signed  "A.,  B., 

C,  churchwardens  for  the  Parish  of  Chingford,  D.,  Over- 
seer."1    So,  too,  a  note  signed,  "A.,  B.,  C,  Directors  of  the 

D.  E.  Company,  limited;"2  or  a  steamboat  contract  signed, 
"T.  &  B.,  agents  of  Steamer  Flora."3 

The  contrary  doctrine  is  laid  down  by  Judge  Parsons  in 
his  learned  work  on  notes  and  bills,  but  seems  to  be  less 
strongly  supported  by  authority.4  In  some  States  where  the 
rule  has  been  laid  down  in  this  way,  the  later  cases,  already 
cited,  have  gone  over  to  the  majority.  The  following  cases 
have  held  that  the  addition  to  the  signature  of  the  agent's 
name  of  an  official  title  disclosing  the  name  of  the  principal 
rendered  the  note  or  bill  the  contract  of  the  principal.5  So, 
too,  in  Connecticut,  a  promissory  note  signed,  "A.,  B.,  ves- 
trymen of  the   Episcopal  Society,"  made  for  the  corpora- 

'Rew  v.  Petet,  1  Ad.  &  El.  196  (1834),  Patterson,  J.,  saying,  "The  makers 
of  the  notes  could  not  hind  themselves  as  parish  officers;  they  contract 
therefore  as  individuals.  Hence  the  addition  of  their  titles  to  their  signa- 
tures cannot  destroy  their  individual  liability."  So,  a  note  signed  '"A  ,  B., 
C,  vestrymen  of  Grace  Church,"  has  been  held  to  bind  only  the  individual 
signers,  although  given  for  a  corporation  debt,  Tilden  v.  Barnard,  43  Mich. 
376  (1880).  But  see,  contra,  as  to  a  note  signed  in  such  way  but  reading 
"We  promise  for  ourselves  and  our  successors,"  Creswell  v.  Holden,  3 
MacArth.  579  (1879). 

2Courtauld  v.  Saunders,  16  L.  T.  (n.  s.)  562  (1867). 

3 Pratt  v.  Beaupre,  13  Minn.  187  (1868).  In  this  case  the  individuals  sign- 
ing were  held  to  be  prima  facie  liable,  but  were  allowed  to  show  the  contrary 
by  parol. 

*"  If  a  corporation  certainly  authorized  to  make,  sign,  accept  or  indorse 
negotiable  paper,  has  an  officer  authorized  to  use  their  name  in  this  way, 
and  this  officer  writes  his  own  name  as  drawer  of  a  bill  of  exchange,  with 
the  express  addition  of  his  office,  it  seems  that  he  will  be  held  to  do  this 
officially,  and  not  personally,  ami  to  bind  the  corporation  and  not  himself," 

1  l'ars.  N.  &  B.  168,  citing  as  authority  Witte  v.  Derby  Fishing  Co.,  2  Conn. 
260;  Safford  v.  Wyckoff,  1  Hill  11,  4'Hill  442;  and  Kean  v.  Davis,  1  Zab. 
•H83.  In  all  of  these  cases  the  bill  contained  a  direction  to  charge  the 
amount  to  the  principal's  account.  As  to  other  cases  containing  like  direc- 
tion, see  \  140  infra. 

6 Secretary :  Gaff  v  Theis,  33  Ind.  307  (1870).  President:  Kennedy  v.  Knight, 
21  Wis.  345  (1867),  at  least  prima  facie.     Agent  for,  Sec:   Hovey  v.  Magill, 

2  Conn.  680  (1818).  So,  too,  a  deed  signed  in  like  manner  purporting  to  be 
the  deed  of  A.  B.,  "  agent  of  the  M.  M.  Co.,"  Magill  v.  Hinsdale,  6  Conn.  465 
(1827).  Superintendent:  Schaefer  v.  Bidwell,  9  Nev.  209  (1874).  Treasurer: 
Laflin  Powder  Co.  v.  Sinsheimer,  48  Md.  411  (1877),  on  parol  evidence  as  to 
consideration  and  intention.  Chief  engineer :  Lazarus  v.  Shearer,  2  Ala.  718 
(1841),  on  parol  evidence. 


?96  FORM THE    PARTIES    DESIGNATED. 

tion  j1  and,  perhaps,  with  more  reason,  a  note  made  for  the 
benefit  of  a  corporation  by  its  authorized  agent,  in  form,  "  I 
promise,"  &c,  and  signed  "A.  M.,  agent  for  the  M.  Mfg.. 
Co."2  So,  an  acceptance  by  "A.  B.,  agent  of  the  C.  Com- 
pany," of  a  bill  drawn  on  him  in  that  form,  was  held,  in 
Connecticut,  to  be  binding  on  the  corporation.3  And  a  simi- 
lar conclusion  was  reached  in  the  case  of  a  note,  signed  "A. 
B.,  agent  of  the  F.  B.  Co.,"  by  reason  of  the  following  lan- 
guage in  the  note :  "  I  will  give,"  &c,  with  a  condition, 
"should  we  find,  &c,  we  will  allow,"  &c.4  The  reader  is 
referred  to  the  next  and  succeeding  paragraphs  for  the  effect 
of  a  corporate  seal,  stamped  paper  and  other  modifications 
on  bills  and  notes  signed  by  an  agent  with  or  without  the 
principal's  name. 

§  138.  Principal  Indicated  by  Corporation  Seal  or  Paper. — 
Sometimes  the  intention  to  bind  the  principal  is  made  evi- 
dent by  the  use  of  its  corporate  seal.  Thus,  a  note  signed 
"A.,  B.,  C,  trustees  of  St.  John's  Church,"  given  for  a  cor- 
poration debt  and  under  the  corporate  seal,  is  clearly  bind- 
ing upon  the  corporation  and  not  upon  the  trustees  person- 
ally.6 .  So,  too,  as  we  have  seen,  a  note  under  the  corporate 
seal  in  the  form,  "We,  the  President  and  Directors  of  the 
C.  S.  M.  Company,  promise,"  &c,  signed  "A.  B.,  President."6 

1  Johnson  v.  Smith,  21  Conn.  626  (1852).  But  see  Tucker  Mfg.  Co.  v.  Fair- 
banks, 98  Mass.  101,  disapproving  this  case,  and  to  the  same  effect,  Tilden  u. 
Barnard,  43  Mich.  376  (1880). 

2Hovey  v.  Magill,  2  Conn.  680  (1818). 

sShelton  v.  Darling,  2  Conn.  435  (1818). 

*  Rogers  v.  March,  33  Me.  106  (1851).  In  this  case  the  action  was  against 
the  agent,  and  great  stress  was  laid  on  the  use  of  the  pronouns  as  indicating 
a  promise  by  the  company. 

5Hood  v.  Hallenbeck,  7  Hun  362  (1876).  In  the  words  used  by  Judge 
Bockes  in  this  case,  "the  note  prima  facie  created  a  personal  obligation 
against  the  makers  ;  but  being  signed  with  descriptive  words  attached  to  the 
names  and  bearing  also  the  corporate  seal,  the  case  was  open  to  proof  of 
the  facts  under  which  it  was  given  with  a  view  to  determine  whether  it  was 
intended  by  the  partners  that  they  should  assume  personal  liability." 

6Pitman  v.  Kintner,  5  Blackf.  250  (1839).  So,  too,  a  note  in  form,  "  We, 
the  two  Directors  of  the  A.  L.  Ass.  Society,  by  and  on  behalf  of  the  said 
Society,  promise,"  &c,  attested  by  the  secretary  and  sealed  with  the  corpo- 
rate seal,  binds  the  corporation  and  not  the  directors  personally,  Aggs  v. 
Nicholson,  1  H.  &  N.  165 ;  25  L.  J.  Ex.  318  (1856).  As  to  this  case,  see,  also,. 
25  and  26  Vict.  c.  89  g  47. 


PRINCIPAL  INDICATED  BY  CORPORATION  SEAL.  197 

So,  a  note,  in  form,  "  We  promise,"  &c,  signed  "  W.  B.  S., 
Secretary,"  and  sealed  with  the  corporate  seal.1  But  in  a 
recent  case  the  Court  of  Queen's  Bench  disregarded  the  cor- 
porate seal  on  a  note  made,  in  form,  "  We,  the  Directors  of 
the  Isle  of  Man  Slate  Company,  Limited,  promise,"  &c,  and 
signed  by  the  individual  names  of  the  directors,  and  they 
were  held  to  be  personally  liable.2 

Another  indication  of  corporate  rather  than  individual 
action  is  sometimes  found  in  the  fact  that  the  bill  or  note  in 
question  is  on  paper  stamped  or  otherwise  marked  with  the 
company's  name  or  dated  at  the  company's  office.  Thus,  an 
order  on  the  cashier  of  the  United  States  Bank,  dated  "Me- 
chanics' Bank  of  Alexandria,"  and  signed  by  W.  P.,  who 
was  the  cashier  of  the  Mechanics'  Bank,  with  his  individual 
name  alone,  was  declared  to  be  a  corporation  order  "on  its 
face,"  and  parol  evidence  was  admitted  to  charge  the  Me- 
chanics' Bank  with  the  order.3  So,  too,  a  check  bearing  in 
the  margin  the  printed  words  "./Etna  Mills,"  and  signed,  "J. 
D.  F.,  treasurer,"  was  held  to  be  the  check  of  the  corpora- 
tion.4 So,  too,  a  promissory  note  dated,  "Office  of  the 
Dubuque  Lumber  Company,"  and  signed  by  the  president 
of  the  company,  "M.  H.  Moore,  P.  D.  L.  Co.,"  was  held  to 
be  the  company's  note  although  it  ran,  "I  promise,"  &c.5 

'Means  v.  Swormstedt,  32  Ind.  87  (1869). 

'Dutton  v.  Marsh,  L.  R.  6  Q.  B.  361  (1871).  "  It  does  not  purport  in  form 
to  lie  a  promissory  note  made  on  behalf  of  or  on  account  of  the  company," 
Cockburn,  C.  J. 

'Mechanics'  Bank  of  Alexandria  v.  Bank  of  Columbia,  5  Wheat.  326  (1820). 
So,  too,  a  receipt  for  money  deposited  in  a  bank  for  the  purchase  of  bonds, 
signed  by  the  cashier  only  and  charged  by  the  bank  to  his  account,  but 
dated  at  the  banking  house,  renders  the  bank  liable  on  parol  evidence  of 
the  facts,  Caldwell  v.  National  Mohawk  Valley  Bank,  64  Barb.  333  (1869). 
So,  too,  and  notwithstanding  a  similar  entry  on  the  books  of  the  corporation, 
a  like  receipt  signed  by  the  president  with  his  individual  name  only,  but 
dated  likewise  at  the  bank  with  a  printed  letter-head  designating  also  the 
names  of  the  principal  bank  officers,  Van  Leuvan  v.  First  Nat.  Bank  of 
Kingston,  6  Lans.  373  (1871),  affirmed  54  N.  Y.  671  (1873).  Indeed,  it  was 
held  in  this  case  in  the  Supreme  Court  that  the  paper  was  prima  facie  a  cor- 
poration contract,  6  Lans.  378. 

*  Carpenter  v.  Farnsworth,  106  Mass.  561  (1871). 

&Lacy  v.  Dubuque  Lumber  Co.,  43  Iowa  510  (1876),  the  circumstances  and 
intention  to  bind  the  company  being  shown  by  parol.  In  like  manner  a 
certificate  "  that  there  is  due  from  this  township,"  signed  "A.  B.,  trustee 


198  FORM — THE    PARTIES    DESIGNATED. 

So,  a  draft  by  the  president  of  a  corporation  on  its  treasurer,, 
dated  at  the  company's  office,  and  signed  "A.  B.,  President," 
the  intention  to  bind  the  corporation  being  shown  by  parol 
and  from  "indications  on  the  bill  itself."1  So,  an  order  on 
an  Insurance  Company  by  its  agents,  dated  at  the  "Office 
of  the  New  England  Agency  of  the"  company,  and  signed 
simply  with  the  firm  name  of  the  agents.2  So,  a  draft  by 
one  agent  of  a  company  on  another,  both  drawer  and  drawee 
being  designated  by  the  official  addition  of  "agent,"  and  the 
draft  being  dated  at  the  company's  office  and  containing  the 
words,  "and  charge  to  the  account  of  this  company,"  is  a 
corporation  draft,  on  which  the  drawer  is  not  personally 
liable.3  As  to  the  effect  of  such  words  referring  to  the  per- 
son to  be  charged,  the  reader  will  find  a  fuller  discussion  in 
a  subsequent  part  of  this  chapter.  Again,  a  bill  of  exchange 
dated  at  the  office  of  a  corporation,  drawn  by  its  president 
on  its  secretary,  and  concluding  with  the  words,  "charge  to 
Motive  Power  account,"  is  the  bill  of  the  corporation  and 
not  of  the  individual  signing  it.4  So,  too,  a  bill  drawn  on 
the  secretary  of  a  corporation  and  dated  at  its  office,  and 
concluding  with  the  words,  "  charge  the  same  to  account  of 
B.  J.,  Superintendent."5  So,  too,  a  bill  of  exchange  dated 
"Pompton  Iron  Works,"  and  concluding  with  the  words, 
"which  place  to  account  of  the  Pompton  Iron  Works,  W.  B., 
agent." 6 

Johnson  Township,"  and  dated  "Treasurer's  Office  Johnson  Township,"  is 
the  note  of  the  corporation,  Johnson  School  Township  v.  Citizens  Bank,  81 
Ind.  515  (1882).  So,  a  bill  of  exchange  dated  "  office  of  Belleville  Nail  Co.," 
concluding  "  charge  same  to  account  of  Belleville  Nail  Co.,"  and  signed  "A. 
B.,  Prest.,  C.  D.,  Sec'y,"  Hitchcock  v.  Buchanan,  15  Otto  416  (1881). 

1  Wetumpka,  &c,  R.  R.  Co.  v.  Bingham,  5  Ala.  657  (1843). 

2Chipman  v.  Foster,  119  Mass.  189  (1875).  In  this  case,  however,  the  note 
contained  the  words:  "being  in  full  of  all  claims  and  demands  against  said 
company  for  loss  and  damage  under  Policy  No.  824." 

8Sayre  v.  Nichols,  7  Cal.  535  (1856). 

401cott  v.  Tioga  R.  R.,  40  Barb.  179,  affirmed  27  N.  Y.  546  (1863). 

6Gillig  v.  Lake  Bigler  R.  R.  Co.,  2  Nev.  214  (1866). 

•Fuller  v.  Hooper,  3  Gray  334  (1855).  Of  this  case  Metcalf,  J.,  says  in  Bank 
of  British  North  America  v.  Hooper,  5  Gray  573 :  "  There  was  in  the  margin 
of  the  draft,  which  was  apparently  a  business  draft  prepared  to  be  used  for 
the  Pompton  Iron  Works,  'Pompton  Iron  Works.'  An  agency  was  thus 
fully  disclosed  on  the  face  of  the  bill  and  the  only  further  inquiry  was 
whether  enough  appeared  to  connect  that  agency  with  Horace  Gray  or  the 


PRINCIPAL    INDICATED    BY    WORDS.  199 

But  this  circumstance  has  not  been  considered  of  the  same 
weight  in  the  English  courts.  Thus,  in  England,  the  indi- 
vidual signers  were  held  personally  liable  on  a  promissory 
note  dated  "  Midland  Co.  Building  Society,"  and  reading 
"We  promise,  &c.  A.,  B.,  trustees;  C,  secretary."1  So, 
too,  upon  a  check  signed  by  railway  directors  with  their  in- 
dividual names  and  stamped  with  a  company  stamp.  The 
character  of  the  stamp,  however,  in  this  case  would  probably 
reconcile  it  with  the  American  cases  above  referred  to.2  And 
a  similar  construction  has  been  made  in  one  or  two  American 
cases.  Thus,  a  note  dated  "  Commercial  Bank  of  R.,"  and 
reading  "  We  promise,  &c,  A.  B.,  president ;  C.  D.,  cashier," 
was  held,  in  Mississippi,  to  be  prima  facie  an  individual  lia- 
bility.3 And  the  individual  signers  were  personally  held  on 
a  note  or  obligation  beginning  with  the  title  of  a  corporation 
law  suit,  of  which  it  was  the  settlement,  "  The  Butchers' 
Benevolent  Association  vs.  The  Crescent  City  Company. 
We,  the  undersigned,  bind  ourselves  to  pay  in  solido,"  &c, 
and  signed  with  the  individual  names  only.  But  in  this 
case  the  form  of  the  promise  "  to  pay  in  solido"  undoubtedly 
had  its  influence  upon  the  construction.4 

§  139.  Principal  Indicated  by  Words:  "In  Behalf  of" — 
"On  Account  of"— "For  the  Use  of"— "By  Order  of."— In 
general,  if  the  principal  be  named  in  the  agent's  bill  or  note 
and  the  promise  be  expressly  made  on  his  behalf,  it  will  be 

Pompton  Iron  Works.  The  court  were  of  opinion  that  it  was  shown  that 
the  signature  of  Burtt  was  the  signature  of  an  agent;  and  that  the  face  of 
the  bill  indicated  who  the  principal  was." 

1  Price  v.  Taylor,  5  H.  &  N.  540  (1860) ;  6  Jur.  (n.  s.)  402;  29  L.  J.  Ex.  331. 

2Seirell  v.  Derbyshire  Ry.  Co.,  9  C.  B.  811  (1850),  Maule,  J.,  saying,  p.  826: 
"It  does  not  purport  to  be  drawn  by  the  company  in  its  corporate  charac- 
ter. The  persons  by  whom  it  is  drawn,  are,  in  fact,  directors  of  the  com- 
pany, but  they  do  not  describe  themselves  as  such.  There  is  no  mention 
whatever  of  the  company,  except  on  the  stamp.  *  *  *  It  is  not  a  sub- 
stitute for  signature  like  the  cross  of  a  marksman.  It  is  not  usual  or  cus- 
tomary to  sign  a  document  in  this  circular  form.  It  looks  rather  (if  one 
were  obliged  to  construe  it)  as  if  this  were  a  document  which  had  passed 
through  the  office  of  the  company  on  such  a  day  and  received  the  stamp 
as  a  mode  of  identifying  or  ear-marking  it,  as  is  usual  in  some  offices." 

3 Fitch  v.  Lawton,  6  How.  871  (Miss.  1842). 

*Cooley  v.  Esteban,  26  La.  An.  515  (1874). 


200  FORM THE    PARTIES    DESIGNATED. 

held  to  be  his  contract,  whatever  be  the  form  in  which  the 
agent  describes  and  signs  himself.  This  is  clearly  the  case 
in  a  note  in  the  following  form  :  "  The  Pastor  and  Deacons 
of  the  First  Baptist  Church,  in  behalf  of  said  church,  prom- 
ise, &c.  *  *  *  S.  D.  G.,  agent  for  the  First  Bapt.  Ch."1 
So,  too,  a  note  in  this  form :  "  For  and  on  behalf  of  the 
D.  M.  Co.,  I  promise,  &c,  W.  R.,  supt.,"  especially  where 
the  consideration  had  gone  to  the  company  and  it  had  made 
payments  on  the  note  after  the  agent's  death.  By  these  cir- 
cumstances an  estoppel  was  held  to  be  raised  against  the 
denial  of  the  note  by  the  corporation.2  And  a  note  in  form, 
"  We,  the  two  Directors  of  the  A.  L.  Ass.  Society,  by  and 
on  behalf  of  the  said  Society,  promise,"  &c ,  signed  with  the 
directors'  individual  names,  attested  by  the  secretary  and 
sealed  with  the  corporate  seal,  was  held  to  be  a  note  of  the 
corporation.3  So,  too,  notwithstanding  the  form  of  the  prom- 
ise, a  note,  in  form,  "  We,  or  either  of  us,  promise  in  behalf 
of  School  District  No.  6.  *  *  *  A.  B.,  president ;  C.  D., 
secretary  ;  E.  F.,  treasurer."*  So,  too,  a  note  in  form,  "We, 
the  trustees  of  the  Methodist  Episcopal  Church,  in  behalf 
of  the  whole  Board  of  Trustees  of  said  church,  promise, 
*  *  *  for  value  received  by  the  said  Association."5  So, 
a  note  given  expressly  "  for  work  done  on  the  N.  W.  Semi- 
nary," and  signed,  "A.,  B.,  C,  Building  Committee,  in  behalf 
of  the  trustees  of  the  N  W.  Sem."6  So,  a  contract  by  C.  L., 
"  as  agent  for  and  on  the  part  and  behalf  of  S.  R.,"  signed 
simply  C.  L.,  but  afterwards  ratified,  in  writing,  by  S.  R., 
will  not  involve  C.  L.  in  any  personal  liability.7 

So,  a  note  in  form,  "We  jointly  promise,  &c,     *     *     * 

1  Jefts  v.  York,  4  Cush.  371  (1849) ;  S.  C,  10  lb.  392  (1852),  although  in  this 
case  the  agent's  authority  had  been  exceeded. 

2Jones  v.  Clark,  42  Cal.  180  (1871). 

3Aggs  v.  Nicholson,  1  H.  &  N.  165 ;  25  L.  J.  Ex.  348  (1856).  See,  as  to  this 
case,  25  and  26  Vict.  c.  89  \  47. 

4  Harvey  v.  Irvine,  11  Iowa  82  (1860). 

5 Haskell  v.  Cornish,  13  Cal.  45  (1859). 

6McHenry  v.  Duffield,  7  Blackf.  41  (1843). 

'Spittle  v.  Lavender,  2  Brod.  &  Bing.  224  (1821). 


PKINCIPAL    INDICATED    BY    WORDS.  201 

on  account  of  the  L.  &  B.  Co.,  A.,  B.,  C,  Directors,"  and 
attested  by  the  corporation  secretary,  is  a  corporation  note.1 
And  in  like  manner  a  memorandum  of  sale  for  a  bill  of 
exchange  "sold  you  on  account  of  T.,"  signed  "E.  F., 
broker,"  will  bind  T.  and  not  the  broker  personally.2  So,  a 
note  "for  the  use  of  the  N.  E.  P.  Union  Store,"  signed  "S. 
S.,  Treasurer,"  binds  the  partnership  doing  business  in  the 
name  of  the  store.3  And  the  same  construction  has  been 
applied  to  a  note  running:  "We,  the  worshipful  master  and 
wardens  and  trustees  of  the  Mt.  Vernon  Lodge  for  its  use, 
promise,"  &c.4  Thus,  too,  a  contract  for  the  hire  of  slaves 
"for  the  use  of  A.  B.,"  signed  by  C.  D.  with  his  own  name 
simply,  was  held  binding  only  on  A.  B.5  And  the  words 
"by  order  of"  or  "by  authority  of"  have  the  same  effect,  in 
general,  and  render  the  principal  liable  and  not  the  agent 
using  them.  This  is  so  of  a  guaranty  indorsed  on  a  note  by 
an  agent  "by  authority  of"  his  principal.6  So,  where  a  bill 
of  exchange  was  drawn  on  the  R.  S.  G.  Company,  and  "ac- 
cepted by  order  of  the  R.  S.  G.  Company,  W.  E.,  Secretary," 
the  acceptance  was  held  not  to  be  binding  on  the  individual 
acceptors.7 

Some  cases  have,  however,  held  a  contrary  doctrine  as  to 
the  force  of  such  expressions,  or  at  least  reached  a  different 
conclusion  in  cases  where  such  words  occur.  Thus,  a  note 
in  form,  "We,  in  behalf  of  the  First  Methodist  Episcopal 
Society,  promise,"  <fec,  signed  with  the  individual  names 
only,  was  held  to  create  at  least  prima  facie  an  individual 
liability.8  So,  a  contract  made  by  a  "committee  for  the 
Jackson  Lodge     *     *     *     on  behalf  of  said  Lodge,"  and 

•Lindus  v.  Melrose,  3  H.  &  N.  177  (1858). 

'Fairlie  v.  Fen  ton,  L.  R.  5  Exch.  173. 

3  Dow  v.  Moore,  47  N.  H.  419  (1867). 

*Pearse  v.  Welborn,  42  Ind.  331  (1873). 

5 Key  v.  Parnham,  6  Harr.  &  J.  418  (1825). 

••New  England  Ins.  Co.  v.  DeWolf,  8  Pick.  56  (1829) ;  S.  0.,  1  Am.  L.  C.  600. 

'Eastwood  v.  Bain,  3  H.  &  N.  738;  28  L.  J.  Ex.  74  (1858). 

•Pomeroy  v.  Slade,  16  Vt.  220  (1844). 


202  FORM THE    PARTIES    DESIGNATED. 

signed  "A.,  B.,  C,  Committee;"1  or  an  acknowledgment  of 
debt  "on  behalf  of"  a  building  committee,  signed  "A.  B.,. 
chm.  com."2  So,  a  promissory  note,  running:  "We  promise, 
&c,  *  *  *  on  behalf  of  the  Cambridge  City  Greys," 
and  signed  "A.,  B.,  C,  Secretary;"3  or  one,  in  form,  "The 
President  by  order  of  the  H.  &  B.  Co.,  promises,"  &c,  signed 
"A.  B.,  president,  C.  D."4  And  it  has  even  been  held  that 
a  note  in  form,  "We,  as  trustees  of  the  Summerfield  Metho- 
dist Episcopal  Church,  for  and  in  behalf  of  said  church, 
promise,"  &c,  and  signed  "A.,  B.,  C,  trustees  of  the  S.  M. 
E.  Ch.,"  bound  the  individual  signers  and  not  the  corpora- 
tion.0 In  another  case,  where  the  same  result  was  reached, 
it  was  due  to  the  form  of  the  promise  as  a  joint  and  several 
one.  This  was  a  note,  in  form,  "We  jointly  and  severally 
promise,  &c,  *  *  *  for  and  on  behalf  of  the  Wesleyan 
Newspaper  Association,"  and  signed  "A.  B.,  C.  D.,  Di- 
rectors."6 

In  other  cases  similar  results  were  reached  in  construing 
acceptances  of  bills  drawn  on  an  individual  and  accepted  by 
him  for  a  company.  This  was  the  case  where  a  bill  was 
drawn  on  "  H.  C,  general  agent  of  L'Unione  Compagna," 
and  "  accepted  on  behalf  of  the  company,  H.  C,"  the  ac- 
ceptor being  held  personally  liable,  although  the  considera- 
tion for  the  acceptance  went  to  the  company.7  So,  too,  an 
acceptance  on  a  bill  drawn  on  W.  C.  for  supplies  to  the  com- 
pany, "Accepted  for  the  companies,  W.  C,  Purser."8 

§  140.  Principal  Indicated  by  Charging  to  His  Account. — 
A  mere  direction  in  a  bill  of  exchange  to  charge  it  to  the 

Steele  v.  McElroy,  1  Sneed  341  (1853). 

"McCalla  v.  Rigg,  3  A.  K.  Marsh.  259  (1821). 

3  Kendall  v.  Morton,  21  Ind.  205  (1863). 

'Caphart  v.  Dodd,  3  Bush  584  (1868). 

5Dennison  v.  Austin,  15  Wis.  366  (1862).  The  reason  for  this  conclusion, 
however,  seems  to  lie  in  the  fact  that  the  note  had  not  been  executed  in  a 
legal  manner  by  the  trustees  "  lawfully  convened.1' 

6Healeyi).  Story,  3  Exch.  3  (1848).  In  this  case  "severally"  was  held 
equivalent  to  "personally." 

'Herald  v.  Connah.  34  L.  T.  (n.  s.)  885  (Exch.  Div.  1876). 

8Mare  v.  Charles,  5  El.  &  Bl.  978. 


PRINCIPAL  INDICATED  BY  CHARGING  TO  HIS  ACCOUNT.    203 

account  of  another,  is  not  alone  sufficient  to  make  the  other 
liable  as  drawer  of  the  bill.  Thus,  on  a  draft  concluding, 
"charge  the  same  to  account  of  proprietors  Pembroke  Iron 
Works,"  and  signed  "  J.  B."  simply,  the  signer  is  personally 
responsible.1  This  is  true  also  of  a  bill  signed  in  the  same 
manner  and  concluding,  "  place  to  the  account  of  the  Dur- 
ham Bank,"  although  the  signer  was  known  by  the  holder 
to  be  an  agent  only.2  In  like  manner,  a  bill  concluding  with 
the  words,  "  charge  to  the  account  of  A.,  B.,  agents  of  the 
P.  Ins.  Co.,"  renders  A.  B.  individually  liable.3  This  is  also 
the  case  prima  facie  of  a  bill  concluding  with  the  words, 
"charge  as  ordered,  J.  K.,  President  E.  &  S.  R.  R.  Co.;"4 
or  "which  please  place  to  account  of  the  D.  F.  Co.,  A.  B., 
President."5  But  in  such  cases  parol  evidence  is  admissible 
to  charge  the  corporation.6  So,  where  a  bill  was  drawn  by 
the  president  of  a  corporation  on  its  treasurer,  concluding 
with  a  request  to  charge  it  to  the  account  of  the  corporation 
and  accepted  "  F.  D.  H.,  treasurer,"  parol  evidence  is  admis- 
sible to  charge  the  corporation  and  relieve  the  treasurer  from 
personal  liability.7 

'Bank  of  British  North  America  v.  Hooper,  5  Gray  567  (1856),  Dewey,  J., 
saving,  p.  572 :  "There  is  no  single  circumstance  on  the  face  of  the  paper, 
which  in  any  way  connects  Horace  Gray  or  the  Pembroke  Iron  Works  with 
the  draft,  unless  it  he  the  direction  to  the  drawees  to  '  charge  the  same  to  the 
account  of  Pembroke  Iron  Works.'  It  has  been  urged  that  this  direction 
indicates  that  the  Pembroke  Iron  Works  are  the  real  drawers.  But  no  such 
inference  can  properly  be  drawn  from  that  circumstance.  Bills  are  often 
drawn  by  parties  on  funds  of  others  distinct  from  the  drawer,  but  with  whom 
arrangements  have  been  made  to  discharge  such  drafts."  Sde,  too,  Safford 
v.  Wyckoff,  1  Hill  11  (1841).  So,  too,  a  bill  concluding  with  the  words, 
"charge  the  same  to  account  of  disbursements  of  Barque  Dublin,"  signed 
by  the  master  of  the  vessel  with  his  own  name  simply,  Bass  v.  O'Brien,  12 
Gray  477  (1859). 

2Goupy  v.  Harden,  7  Taunt.  160;  2  Marsh.  454. 

3Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101  (1867),  Gray,  J.,  saying,  p. 
107:  "The  address  of  the  bill  to  the  corporation  and  the  request  to  them 
to  charge  the  amount  to  the  account  of  the  drawers  have  certainly  no 
tendency  to  show  that  the  drawers  are  the  same  as  the  corporation,  the 
drawees." 

*Kean  v.  Davis,  1  Zab.  683  (1847),  reversing  Spencer  425.  In  this  case,  the 
bill  was  held  to  be  prima  facie  an  individual  bill,  but  parol  evidence  was 
admitted  to  show  that  the  corporation  was  intended  as  maker. 

5Witte  v.  Derby  Fishing  Co.,  2  Conn.  260  (1817). 

"Witte  v.  Derby  Fishing  Co.,  supra;  Kean  v.  Davis,  supra. 

'Hagar  v.  Rice,  4  Col.  90  (1878). 


204  FORM THE    PARTIES    DESIGNATED. 

Where,  on  the  other  hand,  the  principal  is  already  indi- 
cated by  a  date  at  the  company's  office,  the  addition  of  a 
request  to  place  the  amount  of  a  draft  to  its  account,1  or  to 
charge  it  to  its  account,'2  renders  the  intention  to  charge  the 
principal  plainer ;  whether  the  agent  sign  simply  as  "agent,"3 
or  in  his  full  official  name,  e.  g.  "  J.  R.  W.,  President  T.  N. 
Co."4  Indeed,  with  such  date,  a  draft  on  "J.  E.  G.,  Secre- 
tary," concluding,  "  charge  the  same  to  account  of  B.  J., 
Superintendent,"  has  been  held  to  be  a  corporation  draft.5 

§  141.  Principal  Indicated  by  Recital  of  Consideration 
Moving  to  Him. — It  has  been  held  in  some  cases  that  a  draft 
or  note  by  an  authorized  agent  for  the  benefit  of  his  principal 
is  sufficient  in  itself  to  bind  the  principal.  But  the  cases  so 
holding  have  had  some  other  indication,  at  least,  of  such 
intent  on  the  face  of  the  paper,  although  this  may  be  merely 
the  full  official  title  of  the  agent  after  his  signature;6  or  his 
official  character  as  a  public  officer.7  In  other  cases  the 
agent's  name  has  been  held  to  be  a  name  adopted  by  the 
principal  for  pur.poses  of  business.8  Or  the  principal  may 
be  estopped  by  conduct  which  has  led  the  payee  into  mistake 
as  to  the  real  character  of  the  paper.9  These  cases,  there- 
fore, leave  unaltered  the  general  rule,  that  the  fact  of  benefit 
to  the  principal  is  not  of  itself  sufficient  to  control  the  char- 
culler  v.  Hooper,  3  Gray  334  (1855). 

201cott  v.  Tioga  Nav.  Co.,  27  N.  Y.  546  (1863),  affirming  40  Barb.  179; 
Sayre  v.  Nichols,  7  Cal.  535  (1856) ;  Hitchcock  v.  Buchanan,  15  Otto  416 
(1881). 

3  Fuller  v.  Hooper,  3  Gray  334 ;  Sayre  v.  Nichols,  7  Cal.  535. 

401cott  v.  Tioga  Nav.  Co.,  27  N.  Y.  546  (1863),  affirming  40  Barb.  179. 

5Gillig  v.  Lake  Bigler  R.  R.  Co.,  2  Nev.  214  (1866). 

6 Johnson  v.  Smith,  21  Conn.  627  (1852);  Thompson  v.  Tioga  R.  R.,  36 
Barb.  79  (1861).  But  when  the  agent  had  no  authority  to  give  the  note  the 
words  "  for  value  received  as  treasurer  of  the  town  of  W.,"  will  not  render 
the  town  liable,  although  the  note  is  signed  "A.  B.,  treasurer,"  Ross  v. 
Brown,  74  Me.  352  (1883).  In  this  case  the  treasurer  was  held  on  the  note 
as  an  individual. 

'Great  Falls  Bank  v.  Farmington,  41  N.  H.  32  (1860),  where  a  note  was 
given  by  selectmen  for  liquor  purchased  for  the  town. 

8Conro  v.  Port  Henry  Iron  Co.,  12  Barb.  27  (1851);  Melledije  v.  Boston 
Iron  Co.,  5  Cush.  158  (1849).  See,  too,  Lockwood  v.  Colev,  22  Fed.  Rep.  192 
,(U.  S.  C.  C.  Ga.  1884). 

9Melledge  v.  Boston  Iron  Co.,  supra. 


PEINCIPAL  INDICATED  BY  RECITAL,  ETC.  205 

acter  of  commercial  paper  and  make  it  the  contract  of  the 
principal,  when  it  is  in  form  that  of  the  agent  only.1 

When,  however,  the  nature  of  the  consideration  is  ex- 
pressed in  the  paper,  this  circumstance  has  a  natural  weight 
in  determining  the  intention  of  the  parties.  Thus,  the  prin- 
cipal and  not  the  agent  is  liable  on  a  note  expressed  to  be 
"for  work  done  on  the  N.  W.  Seminary,"  and  signed  "A.,  B., 
C,  building  committee,  on  behalf  of  the  treasurer  of  the  N. 
W.  Sem."2  80,  a  note  in  form,  "We,  the  trustees  of  the  M. 
E.  Church,  in  behalf  of  the  whole  board  of  Trustees  of  said 
church,  promise,  <fcc,  *  *  *  for  value  received  by  said 
association."3  So,  an  order  on  a  company  by  its  agents  in 
their  individual  name,  dated  at  the  company's  office  and  con- 
taining the  words,  "being  in  full  of  all  clakns  and  demands 
against  said  company  for  loss  and  damage  *  *  *  under 
policy  No.  824." *  So,  a  note  in  form,  "We  promise,  &c, 
*  *  *  for  and  on  account  of  his  wages  as  teacher,"  and 
signed  "A.,  B.,  trustees  ;"5  or  "I  promise  to  pay,  &c,  *  *  * 
for  building  a  school  house  in  said  district,  A.  B.,  Local 
Director."6  So,  an  order  on  a  Public  School  Commissioner 
"for  tuition,"  signed  "A.,  B.,  trustees."7  And  where  a  due- 
bill  was  given  "in  full  of  labor  performed  for  R.  It.  Co.," 
parol  evidence  was  admitted  to  show  whether  the  intention 
was  to  make  the  company  or  the  agent  liable.8 

This  recital  of  consideration  is,  however,  not  conclusive 
evidence  of  an  intent  to  bind  the  principal,  as  will  be  seen 
from  the  fact  that   some   recent   cases   have  arrived   at   a 

JAnd  even  a  note  "for  work  done  on  the  Hazel  Valley  School  House," 
signed  "A.,  B.,  C,  committee,"  has  been  held  to  render  the  individual  sign- 
ers liable,  Anderson  v.  Pearce,  36  Ark.  293  (1880). 

'McHenry  v.  LViffield,  7  Blackf.  41  (1843). 

s Haskell  v.  Cornish,  13  Cal.  45  (1859). 

4Chipman  v.  Foster,  119  Mass.  1S9  (1875). 

6Horton  v.  Garrison,  23  Barb.  176  (1856). 

6McClellan  v.  Reynolds,  49  Mo.  312. 

'Tutt  v.  Hobbs,  17  Mo.  486  (1853),  the  case  holding  that  there  was  no 
difference  in  the  application  of  this  rule  to  government  officers  or  private 
agents. 

8 Richmond,  &c,  R.  R.  Co.  v.  Snead,  19  Gratt.  354  (1869).  But  see,  Carson 
v.  Lucas,  13  B.  Mon.  213  (1852). 


206  FORM THE    PARTIES    DESIGNATED. 

different  conelusion.  Thus,  the  maker  has  been  held  per- 
sonally liable  on  a  note  in  form,  "For  value  received  in 
policy  No.  100  issued  by  the  H.  M.  Co.,  I  promise,  &c,  C. 
N.,  President  of  the  D.  A.  R.  R.,"  notwithstanding  that  the 
cowsideration  had  been  received  by  the  railroad  company.1 
So,  in  a  note  running,  "We,  the  trustees  of  O.  Academy, 
promise,  &c,  *  *  *  for  teaching  school  at,  &c,  A.,  B., 
C.;"2  or  in  a  note  in  form,  "The  trustees  of  the  N.  N.  School 
District,  promise,  &c,  for  services  of  teacher,"  &c,  and 
signed  "A.,  B.,  trustees;"3  or,  "We,  the  trustees  of  the  M. 
E.  Society,  for  building  a  parsonage  house,  promise,"  &c.4 
This  is  true  also  of  a  receipt  for  money  loaned  "to  be  used 
to  buy  rifles  *  *  *  the  same  to  be  returned  as  soon  as 
the  county  bounty  is  paid,"  signed  "C.  D.,  Capt.,  49th  Regi- 
ment Mo.  Vols."5 

§  142.  Principal  or  Agent — Intention  Shown  by  Form  of 
Promise:  "  I  Promise." — As  we  have  already  seen  in  another 
part  of  this  work,  no  great  stress  can  be  laid  on  the  use  of  a 
singular  pronoun  in  a  note  signed  by  several  persons  or  vice 
versa*  In  the  absence,  however,  of  all  other  indications,  the 
form  of  a  promise,  e.  g.  "  I  promise,"  or  "  We  promise,"  may 
throw  some  light  on  the  iutent  of  the  maker  to  bind  himself 
or  otherwise.  Thus,  one  who  signs  a  note  in  such  words  as 
"  I,  J.  F.,  President  of  the  Mech.  Ins.  Co.,  promise,"  &c, 
binds  himself  thereby.7  So,  too,  even  where  the  note  read, 
"  I,  A.  B.,  as  trustee  of  the  Louisiana  Company,  promise," 
&c,  and  was  signed  "A.  B.,  trustee  La.  Co.,"  the  individual 
signer  was  held.8     And  where  a  note  is  in  the  words,  "  I 

1  Haverhill  Mut.  Ins.  Co.  v.  Newhall,  1  Allen  130  (1861). 
Cleveland  v.  Stewart,  3  Ga.  283  (1847). 

3  Wiley  v.  Shank,  4  Blackf.  420  (1837). 

4  Chick  v.  Trevett,  20  Me.  462  (1841).  "  The  use  of  the  term  '  trustees  '  in- 
dicates," in  the  language  of  Weston,  C.  J.,  in  this  case,  "  rather  that  the 
legal  interest  is  in  them  than  that  they  act  as  mere  agents." 

5Blakely  v.  Bennecke,  59  Mo.  193  (1875). 

6 See  Chapter  IV. 

'Barker  v.  Mechanics'  Ins.  Co.,  3  Wend.  94  (1829). 

'Rupert  v.  Madden,  1  Chandler  146  (1849). 


PRINCIPAL    OR    AGENT.  207 

promise,"  &c,  and  signed  "  Samuel  W.  Snow,  Snow,  Foote 
&  Co.,"  under  one  another,  it  may  be  inferred  to  be  an  indi- 
vidual obligation,  but  the  whole  question  is  one  for  the  jury 
as  a  question  of  fact.1  It  has  also  been  held  that  a  note 
reading,  "  I  promise,"  &c,  and  signed  "  C.  N.,  President  of 
the  D.  A.  R.  R.,"  renders  the  individual  liable,  although  it 
purports  to  be  for  value  received  by  the  company.2  So,  a 
note  reading,  "  I  promise,"  &c,  and  signed  by  several  "  as 
trustees  of  the  First  Univ.  Church."3 

But  there  are  many  cases  where  a  note  reading,  "  I  prom- 
ise," &c,  and  signed  by  an  agent,  has  been  held  to  be  bind- 
ing on  the  corporation  rather  than  the  agent.  This  was 
early  held  in  a  note  reading,  "  I,  G.  C,  treasurer  of  the  D. 
T.  Co.,  promise,  &c.  *  *  *  G.  C,  Treasurer."4  So,  too, 
in  the  following  notes :  "  I,  C.  W.  L.,  Director  of  School 
District  No.  2,  promise,  &c.  *  *  *  C.  W.  L.,  Director;"5 
"I  promise,  &c,  *  *  *  for  building  a  school  house  in 
said  District,  A.  B.,  Local  Director;"6  "I  promise,  &c, 
*  *  *  A.  M.,  agent  for  the  M.  Mfg.  Co.;"7  "For  and  on 
behalf  of  the  D.  M.  Co.,  I  promise,  &c,  *  *  *  W.  R., 
Supt.;"8  "I  promise,  &c,  *  *  *  M.  H.  Moore,  P.  D.  L. 
Co.,"  Moore  being  the  president  of  the  D.  L.  Co.;9  "I 
promise,  as  President  of  the  T.  O.  Co.,  &c,  *  *  *  A. 
B.,  Pres.  T.  O.  Co.;"10  "I  will  give,"  &c,  with  condition 

'Sherwood  v.  Snow,  4G  Iowa  481  (1877).  As  to  notes  beginning,  "  I  prom- 
ise," &c,  and  signed  by  several,  see  p.  177  note  4  supra. 

'Haverhill  Mut.  Ins.  Co.  v.  Newhall,  1  Allen  130  (1861). 

"Burlingarae  v.  Brewster,  7!)  III.  515  (1S75). 

4 Mann  v.  Chandler,  9  Muss.  335  (1812).  But  this  case  has  been  overruled, 
Barlow  v.  Cony.  Soc,  8  Allen  461.     And  see  \  136  supra. 

5McGee  v.  Larramore,  50  Mo.  425  (1872). 
McClellan  v.  Reynolds,  49  Mo.  312. 

'Hovey  v.  Magill,  2  Conn.  680  (1818). 

"Jones  v.  Clark,  42  Cal.  180  (1871).  In  this  case  it  was  shown  that  the 
consideration  went  to  the  company  and  that  the  company  paid  interest 
after  W.  R.'s  death,  and  was  estopped  from  denying  the  note  to  be  theirs. 

9Lacy  v.  Dubuque  Lumber  Co.,  43  Iowa  510  (1876).  This  note  was  dated 
at  the  company's  office,  and  was  shown  by  parol  to  have  been  executed  for 
the  company. 

""Randall  v.  Snyder,  1  Lans.  163  (1869),  although  the  note  was  ultra  vires. 


208  FORM THE    PARTIES    DESIGNATED. 

"should  we  do,  &c,  we  will  allow  *  *  *  A.  B.,  agent 
of  theF.  B.  Co."1 

§  143.  "We  or  Either  of  Us"— "Jointly  and  Severally." — 
On  the  other  hand,  "we promise"  seems  the  natural  form  of 
words  for  a  corporation's  promise,  if  the  name  itself  is  not 
used  in  the  body  of  the  note.  Many  instances  have  been 
already  given  of  notes  in  this  form,  some  construed  as  cor- 
porate obligations  and  others  not.  Nor  are  these  decisions 
always  easily  reconcilable.  Thus,  a  note  in  this  form,  "We 
promise,"  &c,  signed  "  W.  B.  S.,  Secretary,"  and  sealed  with 
the  corporate  seal,  has  been  held  in  Indiana  to  be  a  note  of 
the  corporation;2  while  in  England  a  note  reading,  "We, 
the  Directors  of  the  A.  B.  Company,  promise,"  &c,  signed 
with  the  individual  names  of  the  directors  simply,  was  held 
to  be  their  personal  obligation,  although  sealed  with  the  cor- 
porate seal.3  But  in  England  it  was  held  that  a  note  in  the 
form,  "We  jointly  promise,  &c,  *  *  *  on  account  of 
the  L.  &  B.  Company,"  signed  "A.,  B.,  C,  Directors,"  and 
attested  by  the  secretary,  was  a  note  of  the  corporation  ;4  and 
in  Louisiana  an  equally  joint  promise  reading,  "The  Butchers' 
Benevolent  Association  vs.  Crescent  City  Co.,  We,  the  under- 
signed bind  ourselves  to  pay  in  solido"  &c,  signed  with  the 
individual  names  simply,  was  held  to  be  an  individual  note.5 

And  it  seems  that  the  expression  "we  or  either  of  us" 
forms  no  more  certain  guide  as  to  the  party  to  be  bound. 
Thus,  in  a  promissory  note  in  the  form,  "We  or  either  of  us, 
Directors  of  the  T.  Company,  promise,"  &c,  signed  "A.  B., 
Pres.,  C.  D.,  E.  F.,"  the  individual  signers  were  held  per- 
sonally liable.6     So,  too,  even  in  a  note  reading,  "We  or 

'Rogers  v.  March,  33  Me.  106  (1851). 

"Means  v.  Swormstedt,  32  Ind.  87  (1869). 

■Dutton  v.  Marsh,  L.  R.  6  Q.  B.  361  (1871). 

4Lindus  v.  Melrose,  3  H.  &  N.  177  (1858).  So,  too,  a  note  running,  "  We 
promise  for  ourselves  and  our  successors,"  &c,  signed  "A.,  B.,  C,  Vestrymen 
of  St.  John's  Parish,"  and  given  for  land  bought  for  the  parish,  has  been 
held  to  be  binding  on  the  corporation  only,  Creswell  v.  Holden,  3  MacArth. 
579  (1879). 

5Cooley  v.  Esteban,  26  La.  An.  515  (1874). 

•Whitney  v.  Sudduth,  4  Mete.  296  (Ky.  1863). 


PKINCIPAL  INDICATED  BY  AGENT'S  PROMISE  AS  SUCH.    209 

either  of  us,  as  Directors  of  the  H.  M.  &  G.  Road,  promise," 
&cl  But  the  school  district  was  held  on  a  note  reading, 
"We  or  either  of  us  promise  *  *  *  in  behalf  of  the 
School  District  No.  6.  A.  B.,  Pres.;  C.  D.,  Secy.;  E.  F., 
Treasurer."2 

A  joint  and  several  promise  is,  however,  generally  a  per- 
sonal one,  and  the  individuals  are  bound  by  it  and  not  the 
corporation.  This  has  been  the  construction  in  England 
of  the  following  note:  "We  jointly  and  severally  promise 
*  *  *  for  and  on  behalf  of  the  Wesleyan  Newspaper 
Association,  A.,  B.,  C,  Directors  ;"3  and,  in  the  United  States, 
of  a  note:  "We,  as  trustees  of  the  town  of  H.,  jointly  and 
severally  promise     *     *     *     A.,  B.,  C,  trustees."4 

§  144.  Principal  Indicated  by  Agent's  Promise  "as"  such. — 
If,  indeed,  a  promise  is  made  by  an  agent,  trustee  or  other 
officer  as  agent,  &c,  the  intention  to  bind  the  principal  only 
is  apparently  clear.  There  is  not  wanting,  however,  the 
usual  array  of  cases  to  the  contrary.  So  far  as  these  oppos- 
ing cases  turn  only  upon  that  expression,  they  cannot  be 
regarded  as  authorities  of  any  value.  An  intention  to  bind 
the  corporation  as  an  expressed  principal  and  not  the  agent 
himself,  has  been  held  to  be  manifest  in  the  following  notes: 
"The  trustees  of  the  Third  Church,  as  such  trustees,  pron 
ise,"  &c,  signed  by  each  "as  trustee  of  the  Third  Church;"* 
"  We,  as  trustees  of  the  A.  &  W.  R.  R.  Company,  promise," 
&c,  signed  "A.,  B.,  C,  trustees  of  the  A.  &  W.  R.  R.  Co.  ;"* 

lTitus  v.  Kyle,  10  Ohio  St.  444  (1859). 

2  Harvey  v.  Irvine,  11  Iowa  82  (1860). 

•Healey  v.  Story,  3  Exch.  3  (1848).  Here  the  word  "severally  "  was  held 
equivalent  to  personally. 

4Trask  v.  Roberts,  1  B.  Mon.  201  (1841).  And  see,  Savage  v.  Rix,  9  N.  H. 
263  (1838),  where  road  commissioners  were  held  individually  liable  on  a 
joint  and  several  note,  though  made  expressly  ''  in  official  capacity  "and 
signed  "A.  B.,  C.  D.,  Road  Commissioners."  This  case  seems,  however,  to 
have  turned  on  the  commissioners'  want  of  authority  to  execute  the  note. 
But  see,  contra,  Rice  v.  Gove,  22  Pick.  158  (1839),  where  the  note  read  "  We 
jointly  and  severally  promise,"  &c,  but  was  signed  "  R.  &  J.  for  G.,"  and  G. 
was  held  as  the  maker. 

'Little  v.  Bailey,  87  111.  239  (1S77). 

"Blanchard  v.  Kaull,  49  Cal.  440  (1872),  although  there  be  no  such  corpo- 
ration as  that  named,  or  no  authority  to  execute  a  note  for  it. 


f  LO  FORM THE    PARTIES    DESIGNATED. 

I  promise,  as  President  of  the  T.  O.  Company,"  <fec,  signed 
"A.  B.,  President  of  the  T.  O.  Company  ;'M  "We,  as  trust- 
ees of  the  Methodist  Episcopal  Church,  promise,"  &c,  signed 
"A.,  B.,  trustees;"2  "  We,  as  trustees  of  School  District  No. 
10,  promise,"  &c,  signed  with  their  individual  names  only  ;3 
"  We,  the  trustees  of  the  Evangelical  German  Church,  for 
ourselves  as  such  trustees  and  our  successors  in  office,  prom- 
ise and  bind  ourselves  for  said  congregation  and  such  succes- 
sors in  office,"  &c,  signed  "A.,  B.,  C,  trustees;"4  "I,  as 
treasurer  of  the  Congregational  Society,  or  my  successors  in 
office,  promise,"  &c,  signed  "A.  B.,  treasurer."5  So,  too,  a 
contract  by  "  C.  L.,  as  agent  for  and  on  the  part  and  behalf 
of  S.  R.,"  signed  by  C.  L.  and  afterward  ratified  in  writing 
by  S.  R.,  is  not  binding  upon  C.  L.  personally.6 

Other  cases,  turning  in  some  instances  as  will  be  seen  on 
other  circumstance  or  expression,  hold  such  a  contract  or 
note  to  be  that  of  the  agent  only.  Thus,  a  draft  signed  by 
several  "  as   commissioners,"  has  been  held   to  be  binding 

1  Randall  v.  Snyder,  1  Lans.  163  (1869),  although  the  note  in  question  was 
.lira  vires. 

2  Leach  v.  Blow,  8  Sm.  &  M.  221  (1847).  And  this  note  was  not  admissible 
a  evidence,  it  was  held,  in  an  action  against  the  individual  trustees. 

"Sanborn  v.  Neal,  4  Minn.  126  (1860),  Emmett,  C.  J.,  saying:  "As  the 
primary  object  in  all  cases  is  to  ascertain  what  the  parties  really  intended 
to  declare  by  the  language  used,  it  should  make  no  material  difference 
whether  this  intention  appears  in  the  signature. or  the  body  of  the  instru- 
lent."  It  was  held  in  this  case  that  the  trustees  were  exempt  as  known 
ublic  officers.  But  a  different  result  was  reached  in  the  same  court  where 
the  note  read,  "  We  promise."  &c.  A.,  B.,  C,  "  trustees  of  School  District  No. 
5,"  Fowler  v.  Atkinson,  6  Minn.  57S  (1861).  This  is  also  prima  facie  the  case 
where  the  note  is  drawn,  "  We,  the  trustees  of  School  District  No;  10,  prom- 
ise, &c,  A.  B.,  trustees,"  leaving  on  the  plaintiff  the  onus  probandi,  Bingham 
v.  Stewart,  13  Minn.  106  (1868). 

4Klosterman  v.  Loos,  58  Mo.  290  (1874),  parol  evidence  being  admissible 
to  show  such  intention,  if  necessary. 

5Barlow  v.  Cong.  Soc,  8  Allen  460  (1864).  "Even  the  insertion  in  a 
promissory  note  of  the  word  'as'  between  the  name  of  the  signer  and  the 
description  of  his  relation  to  another  person,  has  been  held  not  sufficient  to 
exempt  him  from  personal  liability  where  the  note  showed  upon  its  face 
that  no  other  person  was  legally  bound  ;  as  in  the  case  of  a  promissory  note 
made  by  a  guardian  'as  guardian,'"  Gray,  J.,  p.  464.  But  of  the  note  in 
question  in  the  suit,  he  says,  p.  465:  "The  note  not  only  names  the  prin- 
cipal, describes  the  relation  between  the  principal  and  the  agent,  and  de- 
clares the  note  to  be  made  in  execution  of  the  agency,  but  it  cannot  take 
effect  according  to  its  terms  except  as  the  note  of  the  principal." 
•Spittle  v.  Lavender,  2  Brod.  &  Bing.  224  (1821). 


PRINCIPAL  INDICATED  BY  AGENT'S  PROMISE  AS  SUCH.    211 

upon  them  personally;1  or  a  sealed  covenant  signed  and 
sealed  by  A.  B.  "as  agent;"2  or  a  contract  of  sale  made  for 
a  principal  residing  abroad  and  signed  "as  agents  for  J.  S. 
&  Co.,  W.  &  S."3  So,  a  promissory  note  reading,  "We  or 
either  of  us,  as  Directors  of  the  H.  M.  &  G.  Road,  promise," 
&c.  ;4  or,  "We,  as  trustees  of  the  town  of  H.,  jointly  and 
severally  promise,"  &c,  signed  "A.,  B.,  C,  trustees;"5  or, 
"  I,  A.  B.,  as  trustee  of  the  Louisiana  Company,  promise," 
<&c,  signed  "A.  B.,  trustee  La.  Co.;"6  or,  "We,  as  commit- 
teemen for  the  erection  of  a  school- house  in  District  No.  3, 
promise,"  &c,  signed  with  the  individual  names  only.7  So, 
too,  "  We,  as  trustees  of  the  Summerfield  Methodist  Episco- 
pal Church,  for  and  in  behalf  of  said  church,  promise,"  &c, 
signed  "A.,  B.,  trustees  of  the  S.  M.  E.  Ch.,  but  not  exe- 
cuted in  a  legal  manner  by  the  trustees  "  lawfully  con- 
vened."8 

aBvles  76;  Eaton  v.  Bell,  5  B.  &  Aid.  34;  Nichols  v.  Diamond,  9  Exch. 
154;'Bottomley  v.  Fisher,  1  H.  &  C.  211. 

'Stone  v.  Wood,  7  Cow.  453  (1827). 

3  Paice  v.  Walker,  L.  R.  5  Ex.  173  (1870).  But  in  Gadd  v.  Houghton,  L.  R. 
1  Exch.  D.  357  (1876),  where  a  different  conclusion  was  reached  as  to  a  con- 
tract for  sale  of  oranges,  "  on  account  of  J.  M.  &  Co.,  Valencia,"  signed  "J. 
C.  H.  &  Co,"  Lord  Justice  James  said,  p.  359:  "The  case  is  not,  in  my 
opinion,  in  any  way  governed  by  Paice  v.  Walker;  for  whatever  the  deci- 
sion was  in  that  case  upon  the  words  'as  agents,'  the  words  in  the  present 
case,  '  on  account  of,'  are  not  at  all  ambiguous  and  it  would  be  impossible 
to  make  them  words  of  description.  The  ratio  decidendi,  in  Paice  v.  Walker, 
was  that,  having  regard  to  the  contract  and  all  the  circumstances  of  the 
case,  tne  words  'as  agents'  must  be  considered  as  merely  describing  or  inti- 
mating the  fact  that  the  defendants  were  agents,  and  did  not  amount  to  a 
statement  that  they  were  making  a  bargain  '  on  account  of  another  person. 
Those  are  the  very  words  used  in  the  present  case.  When  a  man  says  that 
he  is  making  a  contract  '  on  account  of  some  one  else,  it  seems  to  me  that 
he  uses  the  very  strongest  terms  the  English  language  affords  to  show 
that  he  is  not  binding  himself,  but  is  binding  his  principal.  As  to  Paice  v. 
Walker,  I  cannot  conceive  that  the  words  'as  agents'  can  be  properly 
understood  as  implying  merely  a  description.  The  word  'as'  seems  to 
exclude  that  idea.  If  that  case  were  now  before  us,  I  should  hold  that  the 
words  'as  agents'  in  that  case  had  the  same  effect  as  the  words  'on  account 
of  in  the  present  case,  and  that  the  decision  in  that  case  ought  not  to  stand. 
I  do  not  dissent  from  the  principle  that  a  man  does  not  relieve  himself  from 
liability  upon  a  contract  by  using  words  which  are  intended  to  be  merely 
words  of  description,  but  I  do  not  think  the  words  'as  agents'  were  words 
of  description." 

♦Titus  v.  Kyle,  10  Ohio  St.  444  (1859). 

5Trask  v.  Roberts,  1  B.  Mon.  201  (1841). 

6  Rupert  v.  Madden,  1  Chandler  146  (1849). 

'Bayliss  v.  Pearson,  15  Iowa  27!)  (1863). 

"Dennison  v.  Austin,  15  Wis.  366  (1862). 


212  FORM THE    PARTIES    DESIGNATED. 

§  145.  Principal  Indicated  as  Acceptor  or  Indorser  by 
Drawee's  or  Payee's  Name. — The  principles  already  laid 
down  as  to  the  individual  liability  of  an  agent  drawing  a 
bill  or  note  in  his  own  name  are  in  general  applicable  to 
acceptances  and  indorsements  by  an  agent.  In  an  accept- 
ance or  indorsement,  however,  there  is  an  additional  means 
for  ascertaining  who  is  to  be  bound  in  the  way  in  which  the 
bill  or  note  is  drawn.  Thus,  if  the  bill  or  draft  is  drawn 
upon  the  principal  by  name  and  accepted  by  the  agent  in 
his  own  name,  it  will  be  deemed  to  be  the  acceptance  of  the 
principal  and  not  of  the  agent.1  And  this  is  still  plainer  in 
the  case  of  a  bill  drawn  upon  a  company  and  "accepted  by 
order  of  the  R.  S.  G.  Company,  W.  E.,  Secretary  ;"2  or  drawn 
on  the  company  by  a  wrong  name  and  "accepted,  A.  B.,  man- 
ager;"3 or  drawn  on  a  company  and  "accepted,  A.,  B.r 
Directors,"  &c,  such  acceptance  being,  moreover,  attested  by 
the  secretary.*  But  where  a  bill  is  drawn  on  the  agent  "and 
owners"  of  a  vessel  and  accepted  by  the  agent  only  in  his 
individual  name,  he  alone  is  liable  on  the  acceptance.5 

Again,  if  a  note  be  made  to  a  corporation  and  indorsed 
"A.  B.,  Atty.,"  or  "A.  B.,  President,"  it  is  an  indorsement 
by  the  corporation.6  And  this,  as  we  have  seen,  is  a  matter 
of  every-day  occurrence  in  the  indorsement  by  cashiers  of 
paper  made  payable  to  their  banks.  But  where  a  note  was 
made  payable  to  the  Fire  Brick  Company  and  indorsed, 
"Fire  Brick  Co.,  A.  B.,  treasurer,  C.  D.,"  the  latter  is  per- 

1  Lindus  v.  Bradwell,  5  C.  B.  583.  See  also,  Gurney  v.  Evans,  27  L.  J.  Exch. 
166 ;  S.  C,  3  H.  &  N.  122;  Edmunds  v.  Bushell,  35  L.  J.  Q.  B.  91. 

2  Eastwood  v.  Bain,  3  H.  &  N.  738 ;  28  L.  J.  Exch.  74  (1858). 
'Hascall  v.  Life  Association,  5  Hun  151  (1875). 

*Okell  v.  Charles,  34  L.  T.  (n.  s.)  822  (Eng.  Ct.  App.  1876).  _  So,  an  order 
addressed  to  a  corporation  and  "accepted,  A.  B  ,  treasurer,"  is  accepted  by 
the  corporation,  Rogers  v.  Union  Stone  Co.,  134  Mass.  31  (1883). 

6Taber  v.  Cannon,  8  Mete.  456  (1844).  But  an  acceptance  "  Str.  Dorrance 
per  G.  M.,  agent,"  of  a  bill  drawn  on  "  Steamer  Dorrance  and  owners,"  binds 
the  owners  and  not  the  agent,  Alabama  Coal  Mining  Co.  v.  Brainard,  35 
Ala.  476  (1860). 

Merchants'  Bank  v.  McCall,  6  Bosw.  473  (1860) ;  Elwell  v.  Dodge,  33  Barb. 
336  (1861)  ;  Clark  v.  Titcomb,  42  lb.  122  (1864);  Marine  Bank  v.  Clements, 
31  N.  Y.  33  (1865) ;  Russell  v.  Folsom,  72  Me.  436  (1881).  This  is  at  least 
prima  facie  the  company's  act,  Goodrich  v.  Reynolds,  31  111.  490  (1863). 


PRINCIPAL  INDICATED  AS  ACCEPTOR  OR  INDORSER,  ETC.    213 

sonally  liable  and  cannot  be  discharged  by  parol  evidence 
that  he  indorsed  the  note  as  president  of  the  company.1  A 
mere  misnomer  of  the  corporation  in  the  indorsement  leaves 
it  still  the  company's  indorsement,  e.  g.  where  a  note  to  the 
Southern  College  of  Kentucky  was  indorsed,  "Trustees  of 
Southern  College,  by  A.  W.  G."2 

So,  in  general,  the  corporation  or  other  principal  will  be 
liable  as  acceptor  of  a  bill  drawn  upon  its  agent,  and  accepted 
by  him,  as  such  agent.  This  is  true  in  the  case  of  a  bill  or 
draft  on  "A.  B.,  treasurer  of  the  T.  H.  R.  R.  Co.,"  "accepted, 
A.  B.,  treasurer;"3  even  though  the  bill  was  drawn  in  fraud 
of  the  company  and  without  its  knowledge.4 

Where,  however,  a  bill  drawn  on  "H.  B.,  cashier  of  the 
Y.  B.  Co.,"  is  accepted  by  H.  B.  in  his  individual  name,  he 
only  is  liable  on  the  acceptance.5  And  this  has  been  held 
also  in  case  of  an  acceptance  by  "A.  B.,  agent,"  of  a  bill 
drawn  on  "A.  B.,  agent,"  by  "C.  D.,  agent,"  although  the 
bill  was  dated  at  the  company's  office  and  concluded  "charge 
to  the  account  of  this  company;"6  and  also  of  a  bill  drawn 
on  "H.  C,  general  agent  of  L'Unione  Campagna"  and  "ac- 
cepted on  behalf  of  the  company,  H.  C,"  although  the  con- 
sideration went  to  the  company.7 

In  like  manner,  where  a  bill  is  drawn  on  any  one  in  his 
individual  name  and  accepted  by  him  with  the  addition  of 
an  official  name,  as  "A.  B.,  treasurer  of  the  L.  &  M.  Co.," 

1  Condon  v.  Pearce,  43  Md.  83  (1875). 

^Garrison  v.  Combs,  7  J.  J.  Marsh.  84  (1831). 

"Tousey  v.  Taw,  19  Ind.  212(1862).  In  the  similar  case  of  Amison  v. 
E\viii£.  2  Coldw.  367  (1865),  an  action  against  the  acceptor  individually  was 
defeated  on  the  ground  that  the  treasurer  of  the  railroad  company  "  acted 
in  the  character  of  a  public  agent!" 

*Shelton  v.  Darling,  2  Conn.  435  (1818). 

5  Thomas  v.  Bishop,  2  Stra.  955;  Rew  v.  Pettet,  1  Ad.  &  El.  196;  S.  C.,  3 
Nev.  &  M.  456;  Lallerstedt  v.  Griffin,  29  Ga.  708  (1860).  And  it  is  negli- 
gence on  the  part  of  an  agent  to  receive  such  acceptance,  Exchange  Nat. 
Bank  v.  Third  Nat.  Bank,  112  U.  S  276  (1884),  reversing  4  Fed.  Rep.  20  (1880). 

•Slawson  v.  Loring,  5  Allen  340  (1862).  But  on  an  exactly  similar  bill  the 
corporation,  Adams  Express  Co.,  and  not  the  agent  was  held  to  be  liable  as 
maker  in  Sayre  v.  Nichols.  7  Cal.  535  (1856). 

'Herald  v.  Connah,  34  L.  T.  (n.  s  )  885  (Exch.  Div.  1876),  Bramwell,  B., 
saying:  "  Bearing  in  mind  that  *  *  *  the  bill  is  addressed  personally 
to  the  defendant,  it  must  be  taken  that  it  was  accepted  so  as  to  make  it  a 
good  acceptance." 


214  FORM THE    PARTIES    DESIGNATED. 

the  drawee  is  prima  facie  personally  liable  on  his  accept- 
ance.1 Parol  evidence  is  admissible  in  such  case,  however, 
to  show  an  intention  to  bind  the  company  and  that  the  con- 
sideration went  to  the  company.2  But  a  bill  of  exchange 
drawn  on  a  purser  individually  for  supplies  to  his  company 
and  "accepted  for  the  company,  W.  C,  purser,"  has  been 
held,  in  England,  to  bind  him  individually.3  And  so  even 
an  acceptance  by  "A.  B.,  purser,  per  procuration  W.  D.  M. 
Company."4  On  the  other  hand,  in  the  United  States,  a  bill 
drawn  on  A.  B.,  "  accepted,  payable  on  return  of  March 
estimates,  A.  B.,  treasurer,"  has  been  held  to  bind  the  com- 
pany.6 And  a  bill  of  exchange  drawn  by  C.  D.  on  A.  B. 
and  "  accepted,  A.  B.,  agent  of  C.  D.,"  is  equivalent,  it  has 
been  held,  to  a  note  of  C.  D.,  and  is  not  binding  upon  the 
acceptor  personally,  the  intention  to  bind  the  principal  being 
shown  by  parol.6 

§  146.  Signature  by  Agent — Foreign  Statutes. — It  is  not 
necessary  that  an  agent  should  adopt  any  particular  manner 
of  signature  to  effect  his  intention  of  binding  his  principal 
only.  Whatever  shows  this  intention  clearly  is  sufficient,  in 
the  absence  of  specific  statutory  requirements.  The  proper 
and  usual  way,  however,  is  for  the  agent  to  sign  his  princi- 
pal's name,  adding  his  own  name  and  official  title  or  desig- 
nation as  agent,  e.  g.  "A.  B.,  by  C.  D.,  agent."  He  may, 
however,  if  authorized  to  sign   for  his  principal,  sign   the 

'Bruce  v.  Lord,  1  Hilt.  247  (1856);  Laflin  Powder  Co.  v.  Sinsheimer,  48 
Md.  411  (1877).  So,  a  similar  acceptance  corresponding,  however,  to  the 
form  of  the  drawee's  name  on  the  bill,  Moss  v.  Livingston,  4  N.  Y.  208  (1850) ; 
Haight  v.  Naylor,  5  Daly  219  (1874).  But  contra,  Shelton  v.  Darling,  2  Conn. 
435  (1818).  And  see  Walker  v.  Bank  of  the  State  of  N.  Y.,  9  N.  Y.  582 
(1854),  where  the  acceptance  was  in  the  corporation  name,  "  by  A.  B.,  treas- 
urer." 

2Lafiin  Powder  Co.  v.  Sinsheimer,  48  Md.  411  (1877);  Bruce  v.  Lord,  1 
Hilt.  247  (1856).  And  an  acceptance  "  for  the  Opinion  newspaper,  W.  L.  S.," 
of  an  order  drawn  on  W.  L.  S.,  individually  binds  the  partners  owning  the 
paper,  although  the  partnership  name  was  not  used,  Markham  v.  Scruggs, 
48  Ga.  570  (1873). 

3 Mare  v.  Charles,  5  El.  &  Bl.  978. 

4 Nichols  v.  Diamond,  9  Exch.  154. 

6Amison  v.  Ewing,  2  Coldw.  367  (1865).     As  to  this  case,  see  \  145  supra. 

8Hardy  v.  Pilcher,  57  Miss.  18  (1879). 


SIGNATURE    BY    AGENT.  21»^ 

principal's  name  only.1  But  this  course  renders  the  proof 
of  execution  more  difficult  and  is  to  be  avoided.  In  the 
same  way,  one  of  two  joint  makers  of  a  note  may  sign  both 
names,  if  authorized,  without  any  words  indicating  hi- 
agency,  and  charge  his  co-maker  by  parol  proof  of  hi 
authority  and  act.2  And  an  agent  may  bind  his  princip? 
by  signing  his  own  name  first,  e.  g.  "A.  B.,  agent  for  C.  D."1 
Where,  however,  a  signature  in  this  form  failed  to  designate 
the  principal  by  name,  but  referred  only  to  a  newspaper,  of 
which  he  was  proprietor,  e.  g.  "D.  H.,  agent  for  The  Church- 
man," the  agent  was  held  to  be  personally  liable.4  The 
word  "  agent  "  is  not  a  necessary  part  of  an  agent's  signature. 
Thus,  he  may  sign  "A.  B.,  by  C.  D."  And  in  like  manner 
it  is  sufficient  to  bind  his  principal,  if  he  sign  "  C.  D.,  for 
A.  B."5  So,  too,  even  a  note  reading,  "We  jointly  and  sev- 
erally promised,"  &c,  and  signed  "  B.  &  J.,  for  G.,"  is  suffi- 
cient to  bind  G.  only.6     And  a  joint  note  signed  "  W.  S.,  fo: 

1  First  Nat.  Bank  v.  Whitney,  4  Lans.  34  (1871).  Perhaps  it  is  better  to 
avoid  the  doubt  altogether  by  putting  the  principal's  name  as  promisor  into 
the  body  of  the  note,,  Hamilton  v.  Newcastle,  &c,  R.  R.  Co.,  9  Ind.  359  (1857). 

2  Morse  v.  Green,  13  N.  H.  32. 

3Ballou  v.  Talbot.  16  Mass.  461  (1820) ;  Olcott  v.  Little,  9  N.  H.  259  (1838) ; 
Webb  v.  Burke,  5  B.  Mod.  51  (1844);  Tiller  v.  Standley,  39  Ga.  35  (1869). 
But  see,  contra,  in  case  of  a  sealed  note,  Dawson  v.  Cotton,  26  Ala.  591  (1855). 
So,  too,  a  sealed  covenant  signed  "A.  B.,  for  the  Directors,"  White  v.  Skin- 
ner, 13  Johns.  307  (1816).  A  sealed  bond,  however,  signed  in  this  manner, 
given  expressly  for  the  performance  by  the  principal  of  a  certain  act,  binds 
the  principal  onlv,  if  the  agent  has  proper  authority,  Deming  v.  Bullitt,  1 
Blackf.  241  (1823)" 

*The  note  not  being  shown  to  have  been  given  in  the  principal's  business, 
De  Witt  v  Walttm,  9  N.  Y.  571  (1854).  But  see,  as  to  this  case,  Green  v. 
Skeel,  2  Hun  485.  And  in  Shattuck  v.  Eastman,  12  Allen  369,  a  contract 
signed  "  Robert  Eastman,  Agent  for  Ward  6,  Lowell,  Mass.,"  it  was  held, 
might  be  binding  on  the  agent  personally. 

'Scott  v.  Johnson,  5  Bosw.  213  (1859) ;  Long  v.  Colburn,  11  Mass.  97  (1814). 
Robertson  v.  Tope,  1  Rich.  501  (1845),  overruling  Fash  v.  Ross,  2  Hill  294 
(So.  Car.  1834) ;  Hovev  v.  Magill,  2  Conn.  680  (1818) ;  King  v.  Handy,  2  Bradw, 
212  (1878);  Wheelock  v.  Winslow,  15  Iowa  464  (1863);  Roney  v.  Winter 
37  Ala.  277  (1861).  But  see,  contra,  Musa;rove  v  Mcllroy,  5  J.  J.  Marsh.  646 
I 1 831 ) ;  Offutt  v.  Ayres,  7  T.  B.  Mon.  356  (1828),  Bibb,  C.  J.,  dissenting  ;  Tay- 
lor v.  McLean,  1  McMull.  352  (overruled  by  Robertson  v.  Pope,  supra) ; 
Moore  v.  Cooper,  1  Spears  87  (overruled  by  Robertson  v.  Pope,  supra); 
Early  v.  Wilkinson,  9  Gratt.  68  (1852),  where  the  principal's  name  was  in 
brackets  and  the  agent's  authority  was  not  shown  ;  McBean  v.  Morrison,  1 
A.  K.  Marsh.  545  (1819). 

6 Rice  v.  Gove,  22  Pick.  158  (1839). 


216  FORM THE    PARTIES    DESIGNATED. 

himself  and  G.  L.,"  binds  both,  if  there  is  proof  of  authority 
';o  sign  for  G.  L.1 

A  special  provision  is  now  made  by  statute,  in  England, 
for  the  execution  of  notes  and  bills  on  behalf  of  a  company.2 
And  the  laws  of  Spain,  and  of  most  of  the  S2)anish-American 
States,  require  every  bill  of  exchange  or  note  made,  accepted 
or  indorsed  by  an  agent,  to  be  made,  accepted  or  indorsed 
under  a  special  power  of  attorney,  and  to  state  that  fact.3 
The  Hungarian  Exchange  Law  in  like  manner  makes  the 
agent  signing  a  bill  or  note  individually  liable,  unless  he 
expresses  the  fact  that  he  signs  only  as  attorney  for  another.4 
§  147.  Parol  Evidence — Disclosing  Principal — Discharging 
igent. — Parol  evidence  is  generally  admitted  in  simple  con- 
racts  to  disclose  the  principal  for  whom  the  contract  is  made, 
either  for  the  purpose  of  charging  him  with  the  burden  or 
giving  him  the  benefit.5  On  the  other  hand,  it  is  re- 
jected, if  offered  for  the  purpose  of  discharging  an  agent 
who  has  signed  in  such  manner  as  to  render  himself  person- 
ally liable.6 

•Olcott  v.  Little,  9  N.  H.  259  (1838). 

2 By  the  Companies'  Act  of  1862,  25  and  26  Vict.  c.  89  (repealing  the  Joint 
Stock  Companies  Act  of  1856,  19  and  20  Vict.  c.  47)  |  47,  "a  promissory 
note  or  hill  of  exchange  shall  be  deemed  to  have  been  made,  accepted  or 
indorsed  on  behalf  of  any  company  under  that  act,  if  made,  accepted  or 
indorsed  in  the  name  of  the  company,  or  if  made,  accepted  or  indorsed  by 
or  on  behalf  or  on  account  of  the  company  by  any  person  acting  under  the 
authority  of  the  company." 

Argentine  Republic  (1862  Code  Com.  Art.  785);  Bolivia  (1834  Code  Com. 
Art.  369) ;  Colombia  (1853  Code  Com.  Arts.  393,  424) ;  Costa  Rica  (1853  Code 
Com.  Arts.  382,  414);  Ecuador  (same  as  Spain);  Salvador  (1855  Code  Com. 
Arts.  390,  421)  ;  Spain  (1829  Code  Com.  Arts.  435,  467). 

'Hungary  (1860  Exch.  Law  §  27). 

5Byles  38;  Bickerton  v.  Bunell,  6  M.  &  S.  383;  Rayner  v.  Grote,  15  M.  & 
W.  359;  Williams  v.  Bacon,  2  Gray  387  (1854) ;  Dyer  v.  Bnrnham,  25  Me.  9 
(1845)  ;  Eastern  R.  R.  Co.  v.  Benedict,  5  Gray  562  (1856),  where  the  order  in 
Duit  was  made  payable  to  "J.  S.,  President  of  the  Eastern  R.  R.  Co."  And 
this  is  so  of  an  action  against  a  corporation  for  work  done,  although  the 
president  may  have  given  a  due-bill  for  it  in  his  individual  name,  there 
having  been  no  election  of  the  president  individually  as  the  debtor,  Rich- 
mond R.  R.  Co.  v.  Snead,  19  Gratt.  354  (1869). 

6 Nash  v.  Towne,  5  Wall.  703  (1866).  In  this  case  the  agent  was  not 
allowed  to  prove  in  his  own  discharge  that  the  principal  for  whom  he  acted 
was  mentioned  by  him  at  the  time  of  making  the  contract  and  was  known 
to  the  other  contracting  party  to  be  the  real  party  for  whom  the  contract 
was  made.  But  the  rule  adopted  in  Louisiana  is  opposed  to  this  decision, 
Krumbhaar  v.  Ludeiing,  1  Martin  700  (1815).     And  in  Louisiana  the  drawee 


PAROL    EVIDENCE CHARGING     PRINCIPAL.  217 

But  in  commercial  paper  there  must  be  some  indica- 
tion of  the  principal  on  the  face  of  the  paper,  or  he  cannot 
be  holden  as  a  party  to  it.  Thus,  parol  evidence  is  inadmis- 
sible to  charge  one  person  on  a  promissory  note  signed  by 
another  simply  with  his  own  name.1  But  it  has  been  said 
that  such  a  word  as  "  agent,"  added  to  the  signature  of  the 
maker  of  a  note,  is  of  itself  notice  that  the  signer  intended 

of  a  hill  at  suit  of  the  payee  may  he  discharged  hy  showing  that  he  was 
merely  the  agent  of  the  drawee  and  acceptor,  and  that  the  bill  was  given 
for  the  debt  of  the  drawee  to  the  payee,  Wolfe  v.  Jewett,  10  La.  883  (1830). 

•Byles  38;  1  Daniel  286;  Stackpole  v.  Arnold,  11  Mass.  27  (1814) ;  Bedford 
Commercial  Ins.  Co.  v.  Covell,  8  Mete.  442  (1844) ;  Heaton  v.  Myers,  4  Col. 
59  (1878).  But  see  Mechanics'  Bank  v.  Bank  of  Columbia,  5  Wheat.  326 
(1820),  where  a  bank  was  held  by  parol  evidence  on  a  check  signed  by  its 
cashier  with  his  own  name  simply.  And  the  rule  laid  down  in  the  text  is 
not  followed  in  Louisiana,  where  the  principal  is  known  to  the  payee  at  the 
time  of  making  the  note,  Milligan  v.  Lyle,  24  La.  An.  144  (1872).  And  to 
like  effect,  see  Roberts  v.  Austin,  5  Whart.  313  (1839). 

But  a  certificate  of  deposit  in  this  form,  fraudulently  given  by  a  bank  presi- 
dent and  innocently  accepted  by  the  depositor,  will  not  preclude  the  latter 
from  his  right  of  action  against  the  bank  for  money  had  and  received,  Cole- 
man v.  First  Nat.  Bank,  53  N.  Y.  388  (1873).  In  this  case  Andrews,  J.,  said, 
p.  392 :  "  The  money  was  paid  to  and  received  by  the  teller  of  the  bank,  and 
up  to  the  point  where  the  certificate  was  given,  the  dealing,  as  shown  by  the 
act  of  the  parties,  was  between  the  plaintiff  and  the  bank,  and  not  between 
the  plaintiff  and  Van  Campen.  Leaving  out  of  view  the  certificate,  the  liabil- 
ity of  the  defendant  is  clear.  *  *  *  It  is  insisted,  however,  that  the  certifi- 
cate issued  to  the  plaintiff  at  the  time  of  the  deposit  conclusively  establishes 
that  the  transaction  was  with  Van  Campen  and  upon  his  sole  credit.  The 
certificate  is  said  to  be  a  written  contract,  by  which  alone  the  right  of  the 
plaintiff  is  to  be  determined,  and  that  parol  proof  that  the  deposit  was 
made  with  the  bank,  or  tending  to  establish  a  liability  of  the  bank,  was 
inadmissible.  *  *  *  But  assuming  that  the  certificate  signed  by  Van 
Campen,  when  accepted  by  the  plaintiff,  became  a  written  contract  between 
them,  parol  evidence  that  the  bank  received  the  money  as  a  deposit  did  not 
contradict  any  written  agreement  between  the  bank  and  the  plaintiff,  for 
they  had  made  none.  *  *  *  Unexplained,  the  fact  that  the  plaintiff 
accepted  the  certificate  of  Van  Campen  was  strong  if  not  conclusive  evi- 
dence that  the  bank  was  not  a  party  to  the  transaction  ;  but  it  was  evidence 
only,  and  was  subject  to  explanation  by  parol  proof  without  violating  the 
rule  referred  to.  *  *  *  The  rule  does  not  preclude  a  party  who  has 
entered  into  a  written  contract  with  an  agent  from  maintaining  an  action 
against  the  principal  upon  parol  proof  that  the  contract  was  made  in  fact 
for  the  principal,  where  the  agency  was  not  disclosed  by  the  contract  and 
was  not  known  to  the  plaintiff  when  it  was  made,  or  where  there  was  no 
intention  to  rely  upon  the  credit  of  the  agent  to  the  exclusion  of  the  prin- 
cipal. Such  proof  does  not  contradict  the  written  contract."  See,  too,  Ford 
v.  Williams,  21  How.  207  ;  Higgins  v.  Senior,  8  M.  &  W.  834  ;  Short  v.  Spoak- 
man,  2  B.  &  Ad.  962;  Taintor  v.  Prendergast,  3  Hill  72;  Gates  v.  Brower,  9 
N.  Y.  205;  Barry  v.  Ransom,  12  N.  Y.  464.  And  such  a  certificate  of  deposit 
may  lie  rescinded  and  the  bank  sued  for  money  had  and  received,  Shields 
v.  Niagara  Saw  Bank,  3  Hun  477  (1875);  Rich  v.  Niagara  Sav.  Bank,  lb. 
481.  See,  too,  Caldwell  v.  Nat.  Mohawk  Valley  Bank,  64  Barb.  333  (1869) ; 
Van  Leuvan  v.  First  Nat,  Bank  of  Kingston,  6  Lans.  373  (1871),  affirmed  54 
N.  Y.  671  (1873). 


218  FORM THE    PARTIES    DESIGNATED. 

not  to  be  bound  personally.1  And  where  a  note  is  signed  in 
this  way  and  the  principal  is  at  the  time  made  known  to  the 
payee,  it  seems  that  parol  evidence  is  admissible  to  charge 
him  on  the  note;2  especially  if  such  note  have  been  given 
in  the  course  of  the  principal's  business.3  This  is  equally 
true  of  a  note  signed  by  corporation  trustees  with  the  simple 
addition  to  their  signature  of  the  word  "trustees."4 

When  the  name  of  the  corporation  for  which  an  agent  acts 
is  expressed  in  the  signature  or  in  the  body  of  the  instrument 
by  the  agent's  official  title,  the  instrument,  as  we  have  seen,  is 
still  prima  facie  the  bill  or  note  of  the  agent  individually, 
but  parol  evidence  is  in  such  case  admissible  between  the 
original  parties  to  charge  the  principal.5  So,  too,  where  a 
note  read,  "  The  President  and  Directors  of  the  D.  V.  Com- 
pany promise,"  &c,  and  was  signed  "A.  B.,  President ;  C.  D., 
E.  F.,  Directors;  G.  H.,  Secretary."6  In  like  manner  the 
fact  of  a  bill  or  note  being  dated  at  a  corporation  office, 
coupled  with  any  indication  of  agency  in  the  maker's  signa- 
ture, readily  raises  a  presumption  of  its  being  the  contract 
of  the  corporation,  and  parol  evidence  is  admissible  to  estab- 
lish that  fact  and  hold  the  corporation;7  especially  where 

^onro  v.  Port  Henry  Iron  Co.,  12  Barb.  27  (1851).  And  in  Indiana  a 
principal  is  held  on  such  agent's  signature  in  equity  but  not  at  law,  Kenyon 
v.  Williams,  19  Ind.  44  (1862). 

2  Hicks  v.  Hinde,  9  Barb.  528  (1850);  Rathbun  v.  Budlong,  15  Johns.  1 
(1818) ;  Pease  v.  Pease,  35  Conn.  131  (1868) ;  Baldwin  v.  Bank  of  Newburg, 
1  Wall.  234  (1863),  where  the  note  was  made  to  and  indorsed  by.  "A.  B., 
cashier,"  without  naming  any  bank.  But  see,  contra,  Collins  v.  Buckeye 
State  Ins.  Co.,  17  Ohio  St.  215  (1867). 

3Moore  v.  McClur.e,  8  Hun  558  (1876);  Green  v.  Skeel,  2  lb.  485,  not  fol- 
lowing De  Witt  v.  Walton,  9  N.  Y.  571,  so  far  as  it  conflicts. 

4Hypes  v.  Griffin,  89  111.  134  (1878). 

5  Hood  v.  Hallenbech,  7  Hun  362  (1876) ;  Lazarus  v.  Shearer,  2  Ala.  718 
(1841);  Laflin  Powder  Co.  v.  Sinsheimer,  48  Md.  411  (1877);  Wyman  v. 
Gray,  7  Harr.  &  J.  409  (1826).  Especially  where  the  instrument  read,  "We 
assign,"  &c,  and  was  signed  "J.  H.  S.,  Prest.  N.  M.  R.  R.  Co.,"  and  was 
sealed  with  the  corporate  seal  and  attested  by  the  company's  secretary, 
Musser  v.  Johnson,  42  Mo.  74  (1868). 

6Haile  v.  Peirce,  32  Md.  327  (1869) ;  Yowell  v.  Dodd,  3  Bush  581  (1868). 

7 Lacy  v.  Dubuque  Lumber  Co.,  43  Iowa  510  (1876),  where  the  note  was 
signed  by  the  president  of  the  company  with  the  initials,  "P.  D.  L.  Co  ,'r 
added  to  his  signature,  and  bore  date  at  the  office  of  the  D.  L.  Co.  So,  too, 
a  draft  dated  at  the  company's  office,  drawn  by  its  president  on  its  treasurer^ 
and  signed  "A.  B.,  President,"  Wetumpka,  &c,  R.  R.  Co.  <>.  Bingham,  f 
Ala.  657  (1843). 


i 


PAROL    EVIDENCE DISCHARGING    AGENT.  219 

such  a  draft  contained  the  further  direction  to  "  place  to 
account  of  the  company."1  And  parol  evidence  has  been 
admitted,  as  we  have  seen,  by  the  United  States  Supreme 
Court,  to  charge  a  banking  company  on  a  draft  drawn  by  its 
cashier  in  his  individual  name,  but  dated  at  the  bank,  this 
being  declared  a  sufficient  indication  "  on  its  face  "  of  a  cor- 
porate character.2 

The  drawee's  name  in  a  bill  accepted  by  his  agent  is  like- 
wise an  indication  that  an  acceptance  for  the  principal  was 
intended,  and  parol  evidence  is  admissible  to  charge  him.3 
And  where  a  bill  drawn  by  A.  on  B.,  in  his  individual  name, 
was  accepted  by  B., adding  to  his  signature, as  acceptor,  "agent 
of  A.,"  B.  was  discharged  and  A.  held  by  parol  as  virtually 
maker  of  a  promissory  note.4  So,  a  note  signed  "  R.  &  J.  for 
G.,"  may  be  shown  by  parol  to  be  the  note  of  G.  only.5 

But  courts  are  more  reluctant  to  discharge  the  agent  by 
parol  evidence  of  circumstances  showing  another's  liability 
as  principal,  where  the  agent  appears  on  the  paper  to  be  the 
sole  party  liable.  If  he  has  signed  the  instrument  with  his 
own  name  and  there  is  no  indication  on  its  face  of  any  agency 
for  another,  such  evidence  will  be  rejected.6  If,  however,  the 
agency  and  the  principal  for  whom  the  agent  acts  are  both  in- 
dicated, although  it  be  only  in  the  official  title  of  the  agent  or 
officer  signing  the  instrument,  while  the  agent  is  in  such  case 
prima  facie  liable,  he  may  be  discharged  by  parol  evidence  of 

'Fuller  v.  Hooper,  3  Gray  334  (1855),  the  draft  in  this  case  being  marked 
with  the  company's  name  in  the  margin,  and  signed  "  W.  Burtt,  Agt."  And 
parol  evidence  has  been  admitted  to  bind  the  owners  of  a  vessel  on  a  bill 
concluding,  "charge  the  same  to  account  of  disbursements  of  Barque  Dub- 
lin," and  signed  bv  the  master  with  his  individual  name  only,  Bass  v. 
O'Brien,  12  Gray  47*7  (1859). 

3 Mechanics'  Bank  of  Alexandria  v.  Bank  of  Columbia,  5  Wheat.  326  (1820). 

"May  v.  Hewitt,  33  Ala.  161  (1858),  the  bill  being  drawn  on  "The  owners 
of  the  Steamboat  Messenger,"  and  "  accepted,  A.  B.,  Capt." 

4Hardy  v.  Pitcher,  57  Miss.  18  (1879). 

5  Rice  v.  Gove,  22  Pick.  158  (1839),  and  it  may  be  shown  in  discharge  of 
an  agent  on  such  a  note  that  he  never  delivered  it  as  his  note,  Owings  v. 
Grubbs,  6  J.  J.  Marsh.  31  (1831). 

6Byles  38;  Story  on  Bills  \  76;  Higgins  v.  Senior,  8  M.  &  W.  834;  Han- 
cock v.  Fairfield.  30  Me.  299  (1849) ;  Collins  v.  Buckeve  State  Ins.  Co.,  17  Ohio 
St.  215  (1867)  ;  Bartlett  v.  Hawley,  120  Mass.  92  (1876) ;  Brown  v.  Parker,  7 
Allen  339  (1863). 


220  FORM THE    PARTIES    DESIGNATED. 

an  intention  to  bind  the  principal;1  especially  if  the  promise 
be  made  "as  such  trustees,"  &c. ;2  although  the  mere  addition 
of  the  word  "trustee,"  "agent,"  &c,  to  the  individual  name 
signed,  is  not  sufficient  for  this  purpose.3  And  such  evi- 
dence has  been  held  admissible  to  discharge  an  agent  accept- 
ing, with  the  addition  of  the  words  "agent  of  C.  D.,"  a  bill 
drawn  on  him  in  his  own  name  by  C.  D.4  And  in  Louisiana, 
where  the  rule  is  in  this  regard  a  liberal  one,  the  drawer  of 
a  bill  in  his  own  name  may  exonerate  himself  at  suit  of  the 
payee  by  showing  that  he  acted  only  as  agent  of  the  drawee 
and  that  the  bill  was  given  for  the  debt  of  the  drawee  to  the 
payee.5  Whereas  in  Maryland,  on  the  contrary,  the  presi- 
dent of  a  company,  indorsing  with  his  individual  name  a 
note  which  was  payable  to  the  company  and  was  also  indorsed 
"F.  B.  Company,  A.  B.,  treasurer,"  was  not  allowed  to  exon- 
erate himself  by  evidence  that  he  acted  for  the  company  only.6 
Between  principal  and  agent  a  more  liberal  rule  is 
adopted  and  the  agent  may  be  exonerated  by  parol  evidence 
from  liability  to  his  principal  on  paper  actually  drawn  or 
indorsed  on  his  account.7     At  suit  of  other  parties,  however, 

lLaflin  Powder  Co.  v.  Sinsheimer,  48  Md.  411  (1877);  Bruce  v.  Lord,  1 
Hilt,  247  (1856),  where  the  liability  in  question  was  that  of  an  acceptor  in 
this  form  of  a  bill  drawn  on  him  individually;  Smith  v.  Alexander,  81  Mo. 
193  (1860) ;  Drake  v.  Flewellen,  33  Ala.  106  (185S)  ;  Lazarus  v.  Shearer,  2 
Ala.  718  (1841)  ;  Bingham  v.  Stewart,  13  Minn.  106  (1868).  So,  in  the  case 
of  an  agent  who  signed  a  note  "A.  B.,  Gen.  Manager  and  Supt.  St.  L.  M. 
•Co.,"  Gerber  v.  Stuart,  1  Mont.  172  (1870).  So,  too,  of  other  simple  con- 
tracts, Pratt  v.  Beaupre,  13  Minn.  187  (1868).  But  see,  contra,  as  to  notes, 
Sturdivant  v.  Hull,  59  Me.  172  (1871).  And  on  the  other  hand,  a  note  signed 
in  this  way  has  been  held  to  be  prima  facia  the  note  of  the  corporation, 
Kennedy  v.  Knight,  21  Wis.  345  (1867). 

2Klosterman  v.  Loos,  58  Mo.  290  (1874).  Indeed,  a  note  of  this  descrip- 
tion has  been  held  not  to  be  admissible  as  evidence  of  a  debt  in  an  action 
against  the  individual  trustees,  Leach  v.  Blow,  8  Sim.  &  M.  221  (1847). 

3  Hypes  v.  Griffin,  89  111.  134  (1878) ;  Conner  v.  Clark,  12  Cal.  168  (1859). 
But  see,  contra,  Tutt  v.  Hobbs,  17  Mo.  486  (1853),  where  the  trustee  in  ques- 
tion was  a  public  officer  (school  trustee).  This  ground  for  decision  in  hia 
favor  was,  however,  expressly  disclaimed  by  the  court. 

4 Hardy  v.  Pilcher,  57  Miss.  18  (1879). 

5  Wolfe  v.  Jewett,  10  La.  383  (1830). 

6Condon  v.  Pearce,  43  Md.  83  (1875). 

'Lewis  v.  Brehme,  33  Md.  432  (1870) ;  Castrique  v.  Buttigresr,  10  Moo.  P. 
C.  94  (1855).  This  case  discusses  at  length  the  bearing  of  Le  Fevre'v.  Lloyd, 
5  Taunt.  749  and  Goupy  v.  Harden,  7  lb.  159,  upon  this  question.  But  see, 
Story  on  Agency  $  157. 


maker's  or  drawer's  name  uncertain.         221 

it  must  always  be  remembered  that  where  the  intention  has 
been  to  give  credit  personally  to  the  agent  who  signs  the  bill 
or  note,  neither  the  payee's  knowledge  of  his  acting  for  a 
principal  in  the  matter,  nor  the  fact  that  the  consideration 
went  to  the  principal,  will  avail  to  exonerate  the  agent  from 
individual  liability.1 

§  148.  Maker's  or  Drawer's  Name  Uncertain — Fictitious. — 
There  must  be  in  a  negotiable  bill  or  note,  as  we  have  seen, 
no  uncertainty  as  to  the  person  to  be  bound  by  it  as  drawer 
or  maker.  It  cannot  be  made  in  the  alternative  by  either 
of  two  or  more  persons,2  nor  in  the  form  of  a  promise  by 
one  "if  my  brother  does  not  pay  it  within  six  weeks."5 
Neither  does  a  person  who  signs  a  fictitious  name  as  maker 
to  a  note  or  bill  render  himself  thereby  liable  as  maker  of 
the  instrument,  unless  it  be  used  by  him  with  intention  to 
bind  himself  or  has  been  adopted  by  him  as  his  name  for 
business  or  other  purposes.  Except  in  such  case  the  signer 
of  such  bill  or  note  can  only  be  held  liable  in  a  special  action 
on  the  case.4  Where,  however,  a  bill  is  signed  with  a  ficti- 
tious name  and  made  payable  to  the  drawer's  own  order,  an 
acceptance  will  be  construed  to  bind  the  acceptor  to  pay  upon 
the  order  of  the  person  who  actually  drew  the  bill.5  In 
Germany  a  valid  acceptance  or  indorsement  may  be  based 
on  a  bill  of  exchange  in  the  name  of  a  fictitious  drawer.6 
In  Denmark  the  use  of  fictitious  names  for  either  drawer  or 

'Paterson  v.  Gandasequi,  15  East  62.  Of  course  there  is  no  such  intention 
to  he  inferred  where  the  principal  was  not  known  at  the  time  the  contract 
was  made  and  where  the  person  contracting  was  not  known  to  be  acting  for 
another,  Raymond  v.  Crown  Mills,  2  Mete.  324  (1841). 

2  Ferris  v.  Bond,  4  B.  &  Aid.  679.  Here  the  note  ran,  "  I,  J.  C,  promise," 
&c,  and  was  signed  "J.  C,  or  else  H.  B."  This  was  held  not  to  be  a  prom- 
issory note  within  the  Statute  of  Anne. 

"Appleby  v.  Biddulph,  Bui.  N.  P.  272;  4  Vin.  Ab.  240  pi.  16. 

'Bartlett  v.  Tucker,  104  Mass.  336  (1870).  The  drawers  of  a  bill  of  ex- 
change using  a  fictitious  name  and  obtaining  a  discount  of  such  bill  are 
liable  on  it  as  drawers,  Williamson  v.  Johnson,  1  B.  &  C.  146  (1823).  And 
the  giving  of  a  note  by  a  purchaser  of  goods,  Robert,  in  a  wrong  name, 
William,  is  no  forgery,  Regina  v.  Martin,  L.  R.  5  Q.  B.  D.  34  (1879) ;  Dunn's 
Case,  1  Leach  C.  C.  59. 

'Cooper  v.  Meyer,  10  B.  &  C.  468. 

sThol  W.  R.  148. 


222  FORM — THE   PARTIES    DESIGNATED. 

drawee  is  prohibited  under  a  penalty.1  In  France  and 
Portugal,  and  in  all  countries  governed  by  French  law, 
while  fictitious  names  are  not  absolutely  prohibited  their  use 
destroys  the  commercial  character  of  the  paper  and  renders 
it  a  mere  evidence  of  indebtedness.2  This  is  also  the  case  in 
some  other  foreign  lands,  where  defense  on  that  ground  is 
prohibited  to  a  party  with  notice  at  suit  of  a  bona  fide  holder 
for  value.3 

§  149.  Joint  and  Several  Notes. — A  promissory  note  may 
be  signed  by  several  makers  and  in  such  case  it  will  be  either 
joint,  or  several,  or  joint  and  several.  If  no  words  are  used 
to  mark  this  distinction,  it  will  be  a  joint  note  only.4  It  is 
said,  however,  that  if  a  note  reading,  "I  promise,"  &c,  is 
signed  by  several  makers,  it  is  both  joint  and  several.5     And 

1  Denmark  (1825  Exch.  Law  g  3). 

'Belgium  (see  France) ;  France  (1807  Code  Napoleon  Art.  112).  The  Code 
Napoleon  governs  also  in  Geneva,  Greece,  Hayti,  Turkey  and  San  Domingo. 
So,  too,  in  Portugal  (1833  Code  Com.  Art.  323). 

Argentine  Republic  (1862  Code  Com.  Art.  778) ;  Brazil  (1850  Code  Com. 
Art.  354) ;  Holland  (1838  Exch.  Law  Art.  102)  ;  Italy  (1865  Code  Com.  Art. 
198). 

*So  far  at  least  as  to  negative  the  idea  of  one  maker  being  only  surety, 
Johnson  v.  King,  20  Ala.  270  (1852). 

5Byles  7  ;  1  Daniel  104  ;  2  Edwards  §  967  ;  Lane  v.  Salter,  4  Robt.  237  (1866) ; 
Hemmenway  v.  Stone,  7  Mass.  58  (1810) ;  Chaffee  v.  Jones,  19  Pick.  263  ;  Ely 
v.  Clute,  19  Hun  35  (1879) ;  Dill  v.  White,  52  Wis.  456  (1881) ;  Maiden  v.  Web- 
ster, 30  Ind.  317  (1868)  ;  Groves  v.  Stephenson,  5  Blackf.  584  (1841);  Lam- 
bert v.  Lagow,  1  lb.  388;  Ladd  v.  Baker,  26  N.  H.  76  (1852)  ;  Monaon  v. 
Drakeley,  40  Conn.  559  (1873)  ;  Barnet  v.  Skinner,  2  Bailey  88  (1831 ) ;  Wal- 
lace v.  Jewell,  21  Ohio  St.  171  (1871),  criticising  Brownell  v.  Winnie,  29  N.  Y. 
4(H)  (1S64) ;  First  Nat,  Bank  v.  Fowler,  36  Ohio  St.  524  (1881) ;  Partridge  v. 
Colby,  19  Barb.  24S  (1855) ;  March  v.  Ward,  Peake  130;  Clerk  v.  Blackstock, 
Holt  N.  P.  474;  Rees  v.  Abbot,  Cowp.  832.  So,  too,  in  Keller  v.  McHuff- 
nian,  15  W.  Va.  64  (1879),  although  a  seal  be  added  to  one  signature  and 
the  word  "security  "  to  the  other.  This  is  true  also  of  a  bond  in  the  first 
person  singular,  signed  by  several,  Sayer  v.  Chaytor,  1  Lutw.  695;  Galway  v. 
Matthew,  1  Campb.  403;  S.  C,  10  East  264;  and  of  a  warrant  of  attorney, 
Dalrymple  v.  Fraser,  2  C.  B.  698;  S.  C,  15  L.  J.  C.  P.  193  ;  and  of  a  covenant 
signed  by  two  and  sealed  by  only  one  of  them,  Van  Alstyne  v.  Van  Slyck,  10 
Barb.  383  (1851).  But  it  is  said  in  Brownell  v.  Winnie,  29  N.  Y.  409  (1864), 
that  a  note  in  this  form  "  is  still  a  several  contract  and  is  joint  only  for  the 
purpose  of  the  remedy  upon  it  "  But  if  a  note  reading,  "  I  promise,"  &c  , 
lie  signed  "  For  A.,  B.  &  C.,  B  ,"  B.  being  one  of  a  firm  consisting  of  A.,  B. 
&  C,  B.  is  not  separately  liable  on  the  note,  Ex  parte  Buckley.  14  M.  &  W. 
469  (1845),  overruling  Hall  v.  Smith,  1  B.  &  C.  407;  S.  C  ,  2  D.  &  11.  504, 
where  a  similar  note  was  held  to  render  the  firm  liable  jointly  and  also  the 
signer  severally.  See,  too,  Shipton  v.  Thornton,  9  Ad.  &  El.  314;  S.  C,  1  P. 
&  D.  216,  where  a  ruling  similar  to  that  in  Hall  v.  Smith  was  ma"ae  in  the 
case  of  a  contract  for  freight  made  in  the  first  person  singular  but  signed 
with  the  firm  name. 


JOINT    AND    SEVERAL    NOTES.  223 

this  is  true,  except  as  between  themselves,  although  one  party 
sign  as  surety  and  add  the  word  ''surety"  to  the  signature 
of  his  name.1  Of  the  same  force  is  a  note  signed  by  one 
maker  only  with  a  memorandum  added  by  another,  "I  ac- 
knowledge myself  holden  as  surety  for  the  payment  of  the 
above  note,  Barnabas  Adams."2  On  the  other  hand,  a  note 
running,  "We  or  either  of  us  promise,"  &c,  would  be  plainly 
a  joint  and  several  note.3 

It  has  been  said  that  "a  joint  and  several  note,  though  on 
one  piece  of  paper,  comprises  in  reality  and  in  legal  effect  sev- 
eral notes.  Thus,  if  A.,  B.  &  C.  join  in  making  a  joint  and 
several  promissory  note,  there  are  in  effect  four  notes.  There 
is  the  joint  note  of  the  three  makers,  and  there  are  also  the 
several  notes  of  each  of  the  three."4  This  broad  statement  is 
judiciously  and  correctly  qualified  by  Judge  Sharswood  to 
mean  that  as  to  the  remedy  such  a  note  is  either  one  joint  note 
or  three  several  notes,  at  the  holder's  election,  and  in  no  case 
four  notes.  In  other  respects  (indorsement,  demand,  &c.,)  it 
is  but  one  note.5  It  would  seem,  therefore,  more  accurate  to 
call  such  notes  joint  or  several,  since  the  holder  may  elect 
to  sue  any  maker  severally  or  all  jointly,  but  cannot   do 

'Dart  v.  Sherwood,  7  Wis.  523  (1859);  Keller  v.  McHuffman,  15  W.  Va. 

64  (1K79).  In  like  manner,  if  joint  in  form,  the  makers  will  be  jointly  liable 
to  the  holder,  although  '•  surety  "  is  added  to  the  names  of  some  of  them  in 
the  body  of  the  note  and  they  sign  on  the  back  of  the  paper,  Palmer  v. 
Grant,  4  Conn.  389  (1822),  Hosmer,  C.  J.,  dissenting. 

'Hiintv.  Adams,  5  Mass.  358. 

sPogue  v.  Clark,  25  III.  333  (1861).  And  in  a  declaration  against  all  the 
makers  such  note  may  be  described  as  a  joint  note.  But  on  a  note  reading, 
"  We  or  either  of  us  promise  *  *  *  in  behalf  of  School  District  No.  6," 
Ac,  and  signed  "A.  B  ,  Prest. ;  C.  D.,  Secy.  ;  E.  F.,  Treas.,"  the  individual 
signers  were  held  not  to  be  liable  in  Harvey  v.  Irwine,  11  Iowa  82  (1860).  on 
the  authority  of  Haskins  v.  Edwards,  1  lb.  426;  Winter  v.  Hite,  3  lb.  142; 
Lyon  v.  Adamson,  7  lb.  509;  and  Baker  v.  Chambers,  4  Gr.  (Iowa)  428. 

4Bvles  8,  citing  Fletcher  v.  Dyte,  2  T.  R.  6 ;  Owen  v.  Wilkinson,  28  L.  J. 
C.  B.  3;  S.  C,  5  G.  B.  (n.  b.)  526;  Bulbeck  v.  Jones,  5  Jur.  (n.  s.)  1317; 
Beecham  v.  Smith,  El.  Bl.  &  El.  442;  and  observations  of  Parke,  B.,  in 
King  v.  Hoare,  13  M.  &  W.  505.  If  one  maker  of  a  joint  and  several  note 
•  lie,  it  still  remains  the  joint  and  several  note  of  the  surviving  makers, 
Corlies  t>.  Fleming,  1  Vroom  349  (1863). 

5See  Judge  Sharswood's  note,  Byles  19.  So,  an  alteration  affecting  the 
liability  of  one  maker  vitiates  the  entire  instrument  as  to  all,  Gardner  w. 
Walsh,*  5  El.  &  Bl.  91. 


224  FORM THE    PARTIES   DESIGNATED. 

both.1  But  this  election  of  the  holder  is  not  binding  upon 
the  maker  in  his  relation  to  his  co-makers,  and  if  he  is  sued 
as  a  several  maker  and  obliged  to  pay  the  whole  note,  his 
right  to  sue  his  co-makers  for  contribution  is  unimpaired.2 

Such  a  note  may  be  valid  as  a  joint  note,  although  the 
several  note  be  void.3  So,  it  may  be  complete  as  a  several 
note  and  binding  as  such  upon  one  who  has  signed  it  and 
put  it  into  circulation,  although  it  was  intended  to  be  a  joint 
and  several  note  and  was  put  into  circulation  without  the 
other  signatures.4  If,  on  the  other  hand,  a  promissory  note 
be  issued  by  one  person,  but  altered  before  its  negotiation 
without  his  knowledge,  by  the  addition  of  another  signature 
as  maker,  it  is  said  that  this  is  not  such  a  material  alteration 
as  will  discharge  him.5 

Between  such  co-makers  parol  evidence  is  generally 
admissible  to  show  their  actual  relation  to  one  another.6 
Thus,  one  joint  maker  may  show,  as  against  his  co-makers, 
that  he  was  only  a  surety  for  the  others  or  one  of  them;7 

'Streatfield  v.  Halliday,  2  T.  R.  782.  But  see  a  suggestion  to  the  contrary 
in  1  Parsons  251.  In  Reesv.  Abbot,  Cowp.  832,  the  note  was  to  pay  "jointly 
or  severally,"  and  it  was  held  by  Lord  Mansfield  that  the  person  to  elect 
whether  it  should  be  joint  or  several  was  the  person  to  whom  it  was  payable, 
and  that  "  or  "  was  synonymous  in  that  case  with  "  and." 

2Byles9. 

sMaclae  v.  Sutherland,  3  El.  &  Bl.  1. 

♦Dickerson  v.  Burke,  25  Ga.  225  (1858). 

6Brownell  v.  Winnie,  29  N.  Y.  400  (1864).  But  see,  contra,  Hamilton  t>. 
Hooper,  46  Iowa  515  (1877) ;  Lunt  v.  Silver,  5  Mo.  App.  186  (1878). 

6Byles  8;  Carpenter  v.  King,  9  Mete.  515  (1845);  Branch  Bank  v.  Cole- 
man, 20  Ala.  145  (1852).  And  this  is  true,  although  one  of  the  several 
makers  add  to  his  name  the  word  "security,"  which  was  held  to  be  prima 
facie  evidence  of  his  bearing  such  character,  Robison  v.  Lyle,  10  Barb.  512 
(1851). 

'Abbott's  Trial  Ev.  445;  1  Parsons  233;  Hubbard  v.  Gurney,  64  N.  Y.  457 
(1876).  This  case,  in  a  very  able  opinion  of  Church,  C.  J.,  reviews  the  lead- 
ing cases  on  the  subject,  and  overrules  Campbell  v.  Tate,  7  Lans.  370,  and 
Benjamin  v.  Arnold,  5  Thomp.  &  C.  54.  See,  to  the  same  effect,  King  v. 
Baldwin,  17  Johns.  384;  Artcher  v.  Douglass, 5  Denio509;  Pain  v.  Packard, 
13  Johns.  173;  Bank  of  Steubenville  v.  Hoge,  6  Ohio  17;  Davis  v.  Barring- 
ton,  30  N.  H.  517.  "The  object  of  the  instrument  is  to  show  their  relation 
to  the  creditor,  and  ordinarily  it  imports  no  more.  The  question  of  their 
relation  to  each  other  remains  an  open  one;  and  hence  the  admission  of 
parol  evidence  to  answer  it  does  not  violate  the  rule  by  which  such  evi- 
dence is  not  allowed  to  vary  the  legal  import  of  a  written  instrument," 
Lowrie,  J.,  in  Holt  v.  Bodey,  18  Penna.  St.  214  (1852).  "The  note,"  says 
Chief  Justice  Parsons,  "  is  not  a  written  contract  between  the  makers, 


JOINT    AND    SEVERAL    NOTES.  225 

but  he  cannot  prove  special  conditions  of  suretyship,  which 
are  not  implied  in  their  legal  relation  and  contradict  the  writ- 
ing.1 Parol  evidence  is  also  admissible  against  parties  having 
knowledge  of  the  relation  of  the  makers  to  one  another;2 

although  the  language  is  prima  facie  evidence  of  their  relations  to  each 
other;  but  it  is  a  written  contract  between  them  and  the  payee,"  1  Pars.  N. 
&  B.  233.  And  where  A.,  B.,  C.  and  D.  sign  a  joint  and  several  note  and 
C.  and  D.  add  "  surety  "  to  their  names,  B.  may  show  by  parol  at  suit  of  D. 
that  he  was  only  a  surety  for  A.,  McGee  v  Prouty, 9  Mete.  551  (1845).  See, 
too,  Apgar  v.  Hiler,  4  Zab.  812  (1854),  where  a  note  signed  A.,  and  below  him 
B.,  C,  "sureties,"  was  held  to  import  prima  facie  that  B.  and  C.  were  joint 
sureties  for  A.,  but  at  suit  of  B.,  C.  was  allowed  to  show  by  parol  that  he 
was  surety  for  A.  and  B.,  and  not  jointly  with  B.  Originally  this  evidence 
was  only  admissible  in  equity,  Rees  v.  Berrington,  2  Ves.  542.  And  such 
evidence  appears  to  be  regarded  in  England  with  disfavor  notwithstanding 
the  statute  authorizing  equitable  defenses  in  actions  at  law,  Greenough  v. 
McClelland,  2  El.  &  El.  428.  But  see,  King  v.  Baldwin,  17  Johns.  384,  re- 
versing 2  Johns.  Ch.  554. 

Abbott's  Trial  Ev.  445;  e.  g.  an  agreement  on  payee's  part  in  the  nature 
of  a  condition  that  he  would  not  part  with  the  note  and  would  collect  it 
promptly  when  due,  Thompson  v.  Hall,  45  Barb.  214  (1866). 

"Abbott's  Trial  Ev.  445;  1  Daniel  319;  Bailey  v.  Edwards,  4  Best  &  Sm- 
761  (1864) ;  Ervin  v  Lancaster,  6  lb.  572  (1865) ;  Oriental  Financial  Corp.  v 
Overend,  L.  R.  7  Ch.  App.  152,  affirmed  L.  R.  7  H.  L.  348  (1874) ;  Smith  * 
Doak,  3  Tex.  215  (1848) ;  Carpenter  v.  King,  9  Mete.  516  (1845),  Shaw,  C.  J., 
saying  in  this  case:  "If  it  can  be  inquired  into  to  adjust  the  relations  of 
debtors  to  each  other,  it  can  be  to  determine  the  relation  of  the  creditor  to 
each  debtor,  where  the  fact  becomes  material  to  the  respective  rights."  In 
this  case  the  creditor  had  released  the  surety  by  discharging  an  execution 
against  the  principal.  So,  too,  Perry  v.  Hodnett,  38  Ga.  104  (1868) ;  Rose  v. 
Williams,  5  Kans.  483  (1870).  So,  too,  where  the  holder  had  also  agreed  to 
look  to  the  principal,  Harris  v.  Brooks,  21  Pick.  195  (183S).  But  see,  contra, 
Kritzer  v.  Mills,  9  Cal.  21  (1858),  where,  however,  the  defense,  that  the 
holder  had  neglected  to  sue  the  principal  in  due  time,  was  in  itself  unavail- 
ing. And  it  is  not  admissible  against  a  bona  fide  holder  without  notice. 
Orvis  v.  Newell,  17  Conn.  103  (1845) ;  nor  against  the  payee  of  a  bond  having 
no  notice,  the  maker  being  estopped  from  denying  the  character  assumed 
by  his  signature,  Sprigg  v.  Bank  of  Mt,  Pleasant,  10  Pet.  264  (1836) ;  Pintard 
v.  Davis,  1  Zab.  632  (1846),  affirming  Spencer  205;  nor  against  the  payee  of 
a  note,  no  notice  of  the  fact  appearing  to  have  been  given  him.  Bull  o. 
Allen,  19  Conn.  101  (1848) ;  Farrington  v.  Gallaway,  10  Ohio  543  (1841),  the 
proper  remedy  being  said  to  be  in  equity  ;  Slipher  v.  Gooch,  11  lb.  299  (1842) ; 
nor  even,  it  has  been  held,  against  a  pavee  with  notice,  Yates  v.  Donaldson, 
5  Md.  389  (1854);  Manley  v.  Boyeot,  18  E.  L.  &  Eq.  357;  Perfect  v.  Mus- 
grave,  6  Price  111.  But  parol  evidence  has  been  held  admissible  in  such 
case  in  favor  of  an  accommodation  acceptor  at  suit  of  a  holder  having  no 
notice  of  the  accommodation  character  of  the  acceptor  and  discharging  him 
as  a  surety  by  giving  the  drawer  further  time  for  payment,  Bailey  v.  Edwards, 
4  Best&  Sm.  761  (1864)  ;  and  a  fortiori  at  suit  of  a  holder  having  such  notice, 
Ervin  v.  Lancaster,  6  Best  &  Sm.  572  (1865).  On  the  other  hand,  knowledge 
of  the  accommodation  character  of  a  joint  maker  is  said  to  be  no  notice 
that  he  is  a  mere  surety  or  entitled  to  the  privileges  of  one,  Strong  v.  Foster, 
17  C.  B.  201  (1855) ;  and  to  like  effect  as  to  a  maker  for  accommodation  of 
indorser,  see  Bank  of  Montgomery  Co.  v.  Walker,  9  Serg.  &  R.  229  (1823) ;  S. 
C,  12  76.  382;  White  v.  Hopkins,  3  Watts  &  S.  99;  Lewis  v.  Hanchman,  2 
Penna.  St.  416  (1845).  Notice  to  a  holder  to  subject  him  to  such  defense  of 
suretyship,  need  not  ante-date  his   becoming  a  party  to  the  instrument, 

P 


226  FORM THE    PARTIES    DESIGNATED. 

but  not  against  a  bona  fide  holder  for  value  without 
notice.1 

And  except  so  far  as  may  affect  the  rights  of  a  surety,  a 
joint  note  given  for  a  joint  liability  will  be  presumed  to  be 
both  joint  and  several.2 

Oriental  Financial  Corp.  v.  Overend,  L.  R.  7  Ch.  App.  152  (1871),  affirmed 
L.  R.  7  H.  L.  360  (1874) ;  Oakeley  v.  Pasheller,  10  Bligh  548;  S.  C,  4  CI.  & 
Fin.  207  ;  Swire  v.  Redman,  L.  R.  1  Q.  B.  D.  542  (1876) ;  Greenough  v.  Mc- 
Clelland, 2  El.  &  El.  424;  S.  O,  80  L.  J.  Q.  B.  15;  Pooley  v.  Harradine.  7  El. 

6  Bl.  431 ;  S.  C,  26  L.  J.  Q.  B.  156.  But  see,  Ex  parte  Graham,  5  D.  M.  &  G. 
356.  It  is,  however,  necessary  that  the  relation  of  the  surety  should  have 
existed  at  that  time,  and  subsequent  change  giving  rise  to  such  relation  will 
not  affect  even  a  holder  with  notice,  Swire  v.  Redman,  L.  R.  1  Q  B.  D.  542 
(1876).  This  case  virtually  overrules  Maingay  v.  Lewis,  Ir.  R.  3  C.  L.  495; 
in  error,  lb.  229. 

•Abbott's  Trial  Ev.  445 ;  Byles  8 ;  Price  v.  Edmunds,  10  B.  &  C.  578  ;  Strong 
v.  Foster,  17  C.  B.  201;  Manley  v.  Boycot,  2  El.  &  Bl.  46  (1853) ;  Summer- 
hill  v.  Tapp,  52  Ala.  227  (1875) ;  Benedict  v.  Cox,  52  Vt.  247  (1880) ;  Rice  v. 
Cook,  71  Me.  559  (1S80) ;  Hughes  v.  Littlefield,  18  lb.  400.  But  see  Rey- 
nolds v.  Wheeler,  10  C.  B.  (n.  s.)  561 ;  S.  C,  30  L.  J.  C.  P.  351 ;  Hall  v.  Wil- 
cox, 1  M.  &  Rob.  58;  Fen  turn  v.  Pococke,  5  Taunt.  192;  S.  C,  1  Marsh.  14; 
Perfect  v.  Musgrave,  6  Price  111. 

2Abbott's  Trial  Ev.  399.  "  Where  a  note,"  says  Strong,  J.,  in  Yorks  v. 
Peck,  14  Barb.  647  (1853),  "is  made  by  two  persons,  which  in  terms  is  joint 
only,  upon  the  death  of  one  of  the  makers,  the  surviving  maker  only  is 
liable  upon  it;  unless  it  appears  by  direct  proof,  or  the  facts  of  the  case 
warrant  the  inference  that  the  parties  intended  it  should  be  joint  and  several, 

7  Bac.  Ahr.,  Bouvier's  Ed.,  219;  Story's  Eq.  Jur.  gg  162  to  164;  Bradley  v. 
Burwell,  3  Denio  61;  Hunt  v.  Rousmanier,  8  Wheat.  174;  1  Peters  1,  16; 
Carpenter  v.  Provoost,  2  Sandf.  537.  If  such  an  intention  is  expressly 
proved  or  may  be  inferred  from  the  transaction,  the  note  will  be  treated  as 
if  it  was  joint  and  several,  and  in  that  case  the  personal  representatives  of 
the  deceased  maker  are  liable  for  its  payment,  same  cases.  In  all  cases  of  a 
joint  note  given  upon  a  joint  loan  of  money  or  a  joint  liability  of  any  kind, 
it  will  be  presumed  it  was  intended  the  note  should  be  several  as  well  as 
joint,  and  effect  will  be  given  to  it  according  to  that  intention."  Accord- 
ingly in  the  case  cited  (Yorks  v.  Peck)  an  action  was  sustained  on  a  note 
joint  in  form  against  the  surviving  maker  and  the  administrators  of  the 
deceased  maker  sued  together. 


payee's  name.  227 


n.    THE   PAYEE. 

150.  Payee's  Name — Deceased  Person — State. 

151.  Payee — Implied,  not  Named. 

152.  Designated,  not  Named. 

153.  Identical  with  Drawer  or  Drawee. 

155.  Joint — Alternative. 

156.  Agent,  &c. — Personal  Description. 

157.  "Agent,"  "Cashier,"  &c. — Principal  Intended. 

158.  Executor — Puhlic  Officer — Trustee. 

159.  "  Bearer  " — Presumption  as  to  Value. 

160.  "A.  or  Bearer  "— "  Or  Holder  "—"A.  B.,  Bearer." 

161.  Payee  Fictitious. 

162.  — Transfer — Forgery. 
363.                               — Innocent  Parties. 

165.  Payee  Misnamed — Correction  by  Parol  Evidence. 

166.  Name  Common  to  Several  Persons. 

167.  Blank  Payee. 

169.  English  and  American  Statutes. 

170.  Foreign  Statutes. 

§  150.  Payee's  Name — Deceased  Person — State. — It  is  also 
necessary  that  the  payee  should  be  designated  with  certainty.1 
The  most  usual  and  proper  way  of  doing  this  is  by  naming 
the  payee  in  the  body  of  the  instrument  by  his  correct  indi- 
vidual, partnership  or  corporate  name.  The  payee  is,  how- 
ever, often  designated  by  the  word  "bearer,"  the  effect  of 
which  will  be  considered  hereafter.  None  but  an  existing; 
firm,  corporation  or  person  can  be  the  payee  of  a  bill  or 
note.  Thus,  commercial  paper  cannot  be  made  payable  to  one 
who  is  dead.  But  if  a  note  made  to  A.  for  his  accommoda- 
tion be  renewed  to  him  after  his  death  and  indorsed  in  that 
name  by  his  widow,  carrying  on  the  business  in  his  name,  it 
will  have  all  the  force  of  an  assumed  name,  and  be  binding 
on  the  indorser  who  uses  it,  at  suit  of  a  bona  fide  holder.2 


^yles  82;  Chitty  179;  1  Daniel  109;  1  Edwards  §  140;  1  Parsons  31; 
Story  on  Bills  §  54;  Story  on  Prom.  Notes  \  35;  Gibson  v.  Minet,  1  H.  Bl. 
608;  Yates  v.  Nash,  8  C.  B.  (n.  s.)  581;  Douglass  v.  Wilkeson,  6  Wend.  637 
(1831) ;  Brown  v.  Gilman,  13  Mass.  158  (1816) ;  Evertsnn  v.  National  Bank,  66 
N.  Y.  14  (1876) ;  Mayo  v.  Chenoweth,  1  111.  200  (1826) ;  Matthews  v.  Red- 
wine,  23  Miss.  233  (1851);  Prewitt  v.  Chapman,  6  Ala.  86  (1844);  Smith  v. 
Bridges,  1  111.  18  (1819).  Thus,  an  order  indorsed  on  a  bill  for  goods  to  pay 
it  "and  charge  to  our  account"  has  been  held  to  amount  to  a  bill  of  ex- 
change, but  not  to  be  negotiable  for  want  of  a  payee's  name,  Hoyt  v.  Lynch, 
2  Sandf.  328  (1849).  '       ■  ' 

"Van  Etten  v.  Hemann,  35  Mich.  513  (1877).  Such  cases  are  provided  for 
in  Kentucky  by  the  following  statute :  "A  written  obligation  to  a  person  or 
persons,  who  or  some  of  whom  happen  to  be  dead  at  the  time  of  its  execu- 


228  FORM THE    PARTIES    DESIGNATED. 

Again,  where  a  bill  has  been  indorsed  by  an  agent  to  his 
j)rincipal  residing  abroad,  in  ignorance  of  his  death,  it  has 
been  held  that  his  administrator  may  bring  suit  upon  it,  as 
if  made  to  him.1  And  where  one  of  the  United  States  is 
named  as  payee,  although  not  answering  the  description  of 
an  ordinary  corporation,  it  is  a  good  promissory  note.2 

If,  on  the  other  hand,  no  payee  be  designated,  the  instru- 
ment is  not  properly  a  bill  of  exchange  or  note,  and  cannot 
be  sued  on  by  the  holder  as  bearer,  although  an  action  may 
lie  on  the  original  consideration  between  the  parties  to  it.3 
Thus,  an  interest  warrant  or  coupon,  detached  from  a  cor- 
poration bond  and  designating  no  payee,  is  not  a  negotiable 
instrument.4  In  Illinois,  however,  a  due-bill  in  the  simplest 
form,  "Good  for  fifty  cents,"  was  treated  as  an  instrument 
with  the  payee's  name  left  blank,  and  the  holder  was  allowed 
to  add  "to  myself  or  order"  and  to  sue  on  it  as  a  valid  note.5 

§  151.  Payee  Named  by  Implication. — Although  the  payee 
should  properly  be  named  in  all  commercial  paper  in  the 
instrument  itself,  this  is  not  absolutely  necessary.     Thus,  an 

tion,  may  be  proceeded  on  by  the  representative  of  such  person  or  by  the 
survivor,  as  if  it  had  been  executed  in  the  lifetime  of  such  dead  person  or 
persons,"  1881  G.  S.  Ky.  250  §  9. 

Murray  v.  East  Ind.  Co.,  5  B.  &  Aid.  204  (1821),  Abbott,  C.  J.,  saying: 
"We  are  of  opinion  that  as  the  money,  for  which  the  bill  was  remitted,  be- 
longed to  Hope's  estate,  it  was  competent  to  the  administrator  to  elect  to 
take  the  bill  as  the  mode  of  payment,  and  that  thereby  the  property  did 
vest  in  him  and  he  acquired  a  right  to  sue  upon  it."  But  an  indorsement 
to  a  deceased  person  with  an  intent  to  effect  a  transfer  to  her  personal 
representative,  is  void,  Valentine  v.  Holloman,  63  N.  C.  475  (1869). 

2State  of  Indiana  v.  Woram,  6  Hill  33  (1843),  where  a  State  was  held  to 
be  a  corporation  within  the  Statute  of  Anne  as  enacted  in  New  York  (1  R. 
S.  768  I  1). 

sPrewitt  v.  Chapman,  6  Ala.  86  (1844).  So  held  also  of  a  due-bill  without 
a  pavee,  Biskup  v.  Ot>erle,  6  Mo.  App.  583  (1878) ;  and  of  a  check,  Mcintosh 
v.  Lytle,  26  Minn.  336  (1880). 

*Evertson  v.  National  Bank,  66  N.  Y.  14  (1876);  Enthoven  v.  Hovle,  13 
C.  B.  394  (1853).  But  see,  contra,  Smith  v.  County  of  Clark,  54  Mo.  66  (1873) ; 
McCoy  v.  Washington  County,  3  Wall.  Jr.  381  (1862),  if  attached  to  the  bond. 
"They  partake,"  says  Grier,  J.,  p.  385,  "of  the  nature  of  the  peculiar  in- 
strument to  which  they  are  attached." 

6  Weston  v.  Myers,  33  111.  424  (1864).  But  see,  contra,  Brown  v.  Gilman,  13 
Mass.  158  (1816),  Parker,  J.,  saying,  p.  161:  "It  is  not  expedient  to  widen 
the  field  of  negotiable  paper.  Certainly  none  can  be  considered  »as  such, 
but  that  which  has  acquired  the  quality  by  statute,  by  usage,  or  by  the 
terms  of  the  contract;  and  this  paper  in  the  form  in  which  it  is  now  sued 
has  not  the  sanction  of  either  of  these  sources  of  authority." 


PAYEE    NAMED    BY    IMPLICATION.  229 

order  for  payment  at  the  bottom  of  a  statement  of  account, 
the  order  naming  no  payee,  implies  payment  to  the  creditor 
stating  the  account  and  is  a  bill  of  exchange.1  So,  too,  an 
order  for  payment  indorsed  on  a  promissory  note,  in  which 
the  payee  is  named,  payment  to  him  being  plainly  intended 
by  the  order.2  So,  a  new  promise  written  under  a  note  but 
naming  no  payee,  is  a  promissory  note  to  the  payee  named 
in  the  note  above.3 

In  like  manner  a  note,  naming  no  payee,  beginning  with 
a  receipt  naming  the  person  from  whom  the  consideration 
proceeds,  is  a  note  payable  to  such  person,  e.g.  "Received 
of  A.  B.,  £100,  which  I  promise  to  pay  on  demand."4  But 
where  a  promisee  is  named,  it  will  control  the  previous  state- 
ment of  indebtedness.  Thus,  the  following  instrument : 
"Due  to  the  bearer  £3,  which  I  promise  to  pay  to  A.  or 
order,"  is  a  note  payable  to  A.  or  order  and  requires  indorse- 
ment for  its  transfer.5 

Negotiable  paper  generally  contains  words  such  as  "order" 
or  "bearer,"  referring  to  holders  subsequent  to,  and  deriving 
their  title  from,  the  original  payee.  The  usual  phrase  in  the 
former  case  is  "Pay  to  A.  B.  or  order."  But  the  expression 
"Pay  to  the  order  of  A.  B.,"  although  seeming  not  to  name 
any  immediate  payee,  is  exactly  equivalent  to  "A.  B.  or 
order."6     The  original  payee  named,  A.  B.,  can  sue  upon  it 

*Hoyt  v.  Lynch,  2  Sandf.  328  (1849).  But  it  is  not  sufficient  to  promise  to 
pay  "  thirty-five  dollars  on  a  judgment  in  the  hands  of  L.  M.  against  M.  S. 
in  favor  of  J.  C,"  Mayo  v.  Chenoweth,  1  111.  200  (1826). 

2 Leonard  v.  Mason,  1  Wend.  522. 

'Commonwealth  Ins.  Co.  v.  Whitney,  1  Mete.  23  (1840).  But  an  order  by 
the  payee  indorsed  on  a  note,  drawn  on  the  cashier  of  the  bank  where  it  is 
payable  and  naming:  no  payee,  is  not  a  bill  of  exchange,  Douglass  v.  Wilke- 
son,  6  Wend.  637  (1831). 

*Bvles83;  Chitty  161.  179;  1  Daniel  112;  1  Parsons  31;  Storv  on  Bills  I 
55;  Pothier  pi.  31;  Ashbv  v.  Ashl>y,  3  Moo.  &  P.  186  (1829);  Chad  wick  v. 
Allen,  1  Stra.  706;  Green  'v.  Davies,  4  B.  &  C.  235;  6  D.  &  R.  306  (1825) ; 
Cummin^s  ?'.  Gassett,  19  Vt.  308  (1S47).  As  to  the  opinion  of  Pardessus  to 
the  contrary,  see  Story  on  Bills  \  55. 

BCock  v.  Fellows,  1  Johns.  143  (1806). 

61  Daniel  115;  Storv  on  Bills  \  56;  Storv  on  Prom.  Notes  \  35;  Fisher  v. 
Pomfret,  12  Mod.  125;  Smith  v.  McClnre*  5  East  476;  Roby  v.  Phelon,  118 
Mass.  541  (1875);  Howard  v.  Palmer,  64  Me.  86  (1874);  Durgin  v.  Bartol, 
lb.  47o  ;  Sherman  v.  Gohle,  4  Conn.  246  (1822) :  and  an  averment  that  it  was 
made  payable  "  to  his  order,"  is  sufficient,  lb. 


230  FORM THE    PARTIES    DESIGNATED. 

without  indorsing  it,1  but  a  purchaser  from  him  can  only  sue 
after  indorsement  by  him.2 

§  152.  Payee  Designated,  not  Named. — But  it  is  not  nec- 
essary, as  has  been  said,  that  the  payee  be  named,  if  he  is 
otherwise  plainly  ascertained  and  identified.3  This  may  be 
done  sufficiently  even  by  an  "I.  O.  U.,"  and  parol  evidence 
is  in  such  case  admissible  to  show  the  person  intended.4  So, 
a  note  may  be  made  payable  to  "the  manager  of  the  National 
Provincial  Bank;"5  or  "the  treasurer  of  the  First  Parish 
of  A.  ;"6  but  not  "to  the  secretary  for  the  time  being"  of  a 
designated  company.7  Notwithstanding  this,  a  note  to  A. 
and  B.,  "stewardesses  for  the  time  being  of  the  P.  D.  Society," 
naming  them,  will  sustain  an  indictment  for  forgery,  although 
the  society  was  not  legally  enrolled  and  A.  and  B.  were  not 
legally  stewardesses.8     So,  in  a  note  payable  to  "the  Steam- 

1Huling  v.  Hugg,  1  Watts  &  S.  418  (1841). 

2Durgin^.  Bartol,  64  Me.  473  (1874) ;  Smalley  v.  Wight,  44  Me.  442  (1857). 
But  when  indorsed  and  delivered,  it  has  the  same  force  as  any  other  note, 
Hall  v.  Burton,  29  111.  321  (1862). 

3Byles  82;  1  Parsons  31;  Story  on  Bills  \  55;  Storm  v.  Stirling,  3  El.  &  Bl. 
832;  Cowie  v.  Stirling,  lb.  333;  Bacon  v.  Fitch,  1  Root  181  (1790);  Adams 
v.  King,  16  111.  167  (1854). 

*Kinnev  v.  Flvnn,  2  R.  I.  329  (1852).  See,  too.  Curtis  v.  Rickards,  1  Man. 
&  G.  46  (1840). 

5 Robertson  v.  Sheward,  1  Man.  &  G.  511 ;  1  Scott  N.  R.  419  (1840). 

6Buck  v.  Merrick,  8  Allen  123  (1864).  See,  too,  Alston  v.  Heartman,  2 
Ala.  699  (1841). 

7  Yates  v.  Nash,  8  C.  B.  (n.  s.)  581  (1860) ;  Storm  v.  Stirling,  3  El.  &  Bl.  832, 
affirmed  as  Cowie  v.  Stirling,  6  El.  &  Bl.  333  (1856).  Lord  Campbell,  C.  J., 
said  in  this  case:  "The  use  of  the  words  'for  the  time  being,'  in  the  first 
instance,  the  repetition  of  them  afterwards,  and  the  whole  form  and  scope 
of  the  instrument  satisfy  us  that  the  payment  was  to  be  made  to  the  indi- 
vidual who  at  the  time  of  the  instrument  falling  due  should  till  the  situation 
of  secretary  of  the  company,  and  not  to  the  plaintiff,  unless  he  happen  to 
be  the  secretary  at  that  time.  It  was,  we  think,  clearly  intended  as  a  iloat- 
ing  promise,  the  performance  of  which  was  to  be  made  to  the  person  being 
secretary  when  the  document  became  due.  The  other  construction  would 
in  effect  be  to  hold  that  the  words  '  the  secretary  for  the  time  being '  meant 
the  now  secretary ;  but  we  think  that  the  words  were  used  for  the  very  pur- 
pose of  excluding  that  construction.  *  *  *  The  defect  is  that  it  is  a 
promise  to  pay  some  person  to  be  ascertained  ex  post  facto." 

8Rex  v.  Box,  6  Taunt.  325  (1815),  Le  Blanc,  J.,  saying:  "Though  these 
ladies  were  not  at  the  time  legally  stewardesses,  yet  it  was  a  description  by 
which  they  were  known  at  the  time;  and  though  they  could  not  legally 
have  successors  in  office,  yet,  in  oase  of  their  decease,  their  executors  and 
administrators  might  sue  and  they  themselves  during  their  life  might  re- 
cover on  it." 


PAYEE  IDENTICAL  WITH  DRAWER  OR  DRAWEE.  231 

boat  Juda  and  owners  or  order,"  the  owners  are  sufficiently 
designated  as  payees.1  It  is  also  sufficient  if  a  note  be  made 
payable  to  the  "heirs  of  A.;"2  although  A.  be  then  living, 
his  heirs  apparent  being  the  persons  intended  in  such  case.3 
So,  it  is  sufficient,  if  a  note  be  payable  to  "A.  or  heirs;"4  or 
to  "the  administrator  of  A.;"5  or  "the  guardian  of  A.;"6 
or  "the  trustees  acting  under  A.'s  will."7  But  it  is  not  suffi- 
cient to  make  a  note  payable  to  "A.  or  B.,  administrators  of 
C.  ;"8  or  to  "the  heirs,  administrators  or  assigns  of  A.,  de- 
ceased;"9 or  to  "the  estate  of  M.  L.,  deceased."10 

§  153.  Payee  Identical  with  Drawer  or  Drawee. — A  bill  of 
exchange  may  be  made  payable  to  the  order  of  the  person 
on  whom  it  is  drawn,  although  this  is  unusual.11  So,  a  nego- 
tiable promissory  note  may  be  payable  to  the  maker's 
own  order.12  And  when  made  so  payable  and  indorsed  in 
blank  by  the  maker,  it  is  equivalent  to  a  note  payable  to 

1  Moore  v.  Anderson,  8  Ind.  18  (1856). 

2 Bacon  v.  Fitch,  1  Root  181  (1790). 

3  Lockwood  v.  Jesup,  9  Conn.  272  (1832) ;  Cox  v  Beltzhoover,  11  Mo.  142 
(1847). 

4 Knight  v.  Jones,  21  Mich.  161  (1870). 

5Adams  v.  King,  16  111.  109  (1S54) ;  Moody  v.  Threlkeld,  13  Ga.  55  (1853). 

6Hemphill  v.  Hamilton,  11  Ark.  425;  Bingham  v.  Calvert,  13  lb. 
399  (1853);  Chitwood  v.  Cromwell,  12  Heisk.  658  (1874).  Such  a  note 
is  the  individual  property  of  the  guardian  and  can  be  sued  by  his  exec- 
utor, lb. 

'Megginson  v.  Harper,  Tyrw.  96;  2  Cromp.  &  M.  322. 

8Musselman  v.  Oakes,  19  111.  81  (1S57). 

9 Bennington  v.  Dinsmore,  2  Gill  348  (1844). 

10Lyon  v.  Marshall,  11  Barb.  241  (1851) ;  Tittle  v.  Thomas,  30  Miss.  122 
(1855).  And  it  may  be  regarded  as  a  mere  statement  of  account,  Bowles  v. 
Lambert,  54  III.  237  (1870).  But  such  an  instrument  is  a  written  contra ct 
and  evidence  of  debt  between  the  maker  and  the  executor  of  the  estate, 
Hendricks  v.  Thornton,  45  Ala,  309  (1871).  And  see,  Peltier  v.  Babillion,  45 
Mich.  384  (1881),  where  such  instrument  was  held  to  be  a  valid  note  payable 
to  the  legal  representative. 

"Chitty  33;  Holdsworth  v.  Hunter,  10  B.  &  C.  449  (1830) ;  Wildes  v.  Savage, 
1  Story  C.  C.  29  (1839).  And  a  bill  may  be  payable  "to  the  order  of  the 
acceptor,"  Witte  v.  Williams,  8  So.  Car.  290  (1876).  But  it  has  been  held  that 
an  order  on  A.  B.  to  pay  to  his  own  order,  accepted,  but  not  indorsed,  by 
him,  lays  the  acceptor  under  no  obligation  to  a  third  party,  and  is  not  a  bill 
of  exchange,  for  forging  or  uttering  which  an  indictment  will  lie,  Regina  v. 
Bartlett,  2  Mood.  &.  Rob.  362  (1841).  See,  too,  Story  on  Bills  g  35,  and  com- 
ments on  it  in  Wildes  v.  Savage,  supra. 

12 Miller  v.  Weeks,  22  Penna.  St.  89  (1853). 


232  FORM THE    PARTIES    DESIGNATED. 

bearer.1  And  the  maker  then  becomes  liable  both  as  maker 
and  as  indorser.2  Such  a  note  is,  however,  incomplete  and 
of  no  binding  force,  until  it  has  been  indorsed  by  the  maker.3 
In  like  manner  a  note  payable  "  to  our  and  each  of  our  order," 
when  indorsed,  falls  within  the  Statute  of  Anne.*  In  New 
York,  however,  by  force  of  the  Revised  Statutes,  where  a 
note  payable  to  the  maker's  order  is  transferred  by  him  for 
value  without  indorsement,  he  is  liable  on  it  to  a  bona  fide 
holder  as  on  a  note  payable  to  bearer.5  While,  in  Kentucky, 
a  note  to  the  maker's  order  indorsed  in  blank  by  him  is  not 
negotiable.6 

•Masters  v.  Baretto,  8  C  B.  433  (1849);  Wilder  v.  De  Wolf,  24  111.  190 
(J860);  Roberts  v.  Lane,  64  Me.  108  (1874);  Bishop  v.  Rowe.  71  lb.  263 
(1880).  Bee.  too,  Gay  v.  Lander,  17  L.  J.  C.  P.  286 ;  Brown  v.  De  Winton,  6 
C.  B.  336  (1848).  And  when  such  note  indorsed  in  blank  by  the  maker 
comes  into  the  bands  of  a  bona  fide  holder  for  value  before  maturity,  it  will 
not  be  subject  to  defense  by  reason  of  equities  between  the  original  parties, 
Roberts  v.  Lane,  supra  But  it  has  been  held  that  a  note  payable  to  the 
maker  or  bearer  can  only  be  sued  in  equity,  Keith  v.  Keith,  11  Rich.  Eq.  83 
(1859) ;  Glenn  v.  Caldwell,  4  lb.  168  (1851). 

2 Hall  v.  Burton,  29  111.  321  (1862). 

3 Brown  v.  De  Winton,  6  C.  B.  336  (1848) ;  Wood  v.  Mytton,  10  Q.  B.  805 
(1847),  overruling  Flight  v.  Maclean,  16  M.  &  W.  51  (1846),  so  far  as  it  con- 
flicts ;  Rnby  v.  Phelon,  118  Mass.  541  (1875);  Little  v.  Rogers,  1  Mete.  108 
(1840) ;  Kayser  v.  Hall,  85  111.  513  (1877) ;  Pickering  v.  Cording,  92  Ind.  306 
(1883) ;  Scull  v.  Edwards,  13  Ark.  24  (1852),  the  first  indorsee  being  in  such 
case  in  reality  the  payee.  But  a  note  reading,  "  I  promise  to  pay  to  the 
order  of  myself,"  signed  by  A.  and  B.  and  placed  in  B.'s  hands  to  be  nego- 
tiated for  his  sole  benefit,  is  virtually  a  joint  and  several  note  payable  "  to 
the  order  of  ourselves  or  either  of  us,"  and  binds  A.  although  negotiated  by 
the  indorsement  of  B.  only,  First  Nat.  Bank  v.  Fowler,  36  Ohio  St.  524 
(1881). 

♦Absolon  v.  Marks,  11  Q.  B.  19  (1847);  S.  C,  11  Jur.  1016;  S.  C,  17  L.  J. 
Q.  B.  7. 

'Central  Bank  v.  Lang,  1  Bosw.  202  (1857);  Plets  v.  Johnson,  3  Hill  115 
(1842).  The  Neiv  York  statute  provides  as  follows:  "Such  notes,  made 
payable  to  the  order  of  the  maker  thereof  or  to  the  order  of  a  fictitious  per- 
son, shall,  if  negotiated  by  the  maker,  have  the  same  effect  and  be  of  the 
same  validity  as  against  the  maker,  as  if  payable  to  bearer,"  1  R.  S.  768  \  5. 
There  is  a  similar  statute  in  California  (Civ.  Code  1872  U  81<>1,  8102),  Dakota. 
(Rev.  Code  1877  U  1832,  1833),  Idaho  (Rev.  L.  1875  p.  652  \  5),  Michigan  (1 
Comp.  L.  1871  p.  515  |  4),  Minnesota  (1878  G.  S.  c.  23  \  16),  Missouri  (1  R.  S. 
1879  c.  10  I  549),  Nevada  (1  Comp.  L.  1873  c  5  §  9),  Oregon  (1872  G.  L.  c.  48 
\\  1,  4)  and  Wisconsin  (1878  R.  S.  §  1679).  And  the  accommodation  indorser 
of  such  a  note,  with  knowledge  of  the  facts,  is  liable  as  on  a  note  payable 
to  bearer,  Irving  Nat.  Bank  v.  Alley,  79  N.  Y.  536  (1880),  Earl,  J.,  saying 
that  the  facts  of  which  the  defendant  must  have  knowledge  are  "simply 
that  the  note  is  payable  to  the  order  of  the  maker  or  of  a  fictitious  person." 

•Muhling  v.  Sattler,  3  Mete.  285  (Ky.  1860).  This  was  changed  by,statute 
in  1866  (Myers'  Supp.  741),  so  that  the  blank  indorsement  may  now  be  filled 
and  sued  upon  as  a  fresh  promise,  Pace  v.  Welmending,  12  Bush  141  (1876)  ; 
or  the  holder  may  sue  without  filling  the  blank  indorsement,  lb.     "  When- 


PAYEE  IDENTICAL  WITH  DRAWEE,  OR  DRAWEE.  233 

It  frequently  occurs  that  a  note  or  bill  is  drawn  by,  or 
payable  to,  several  persons.  In  such  case,  if  the  same  per- 
son be  both  maker  and  payee,  he  cannot  sue  on  the  note,  but 
it  remains  good  as  a  note  to  his  co-payees,  e.  g.  C.  could  sue 
on  a  note  made  by  A.  and  B.  to  B.  and  C.1  So,  if  A.,  B.  & 
C.  make  a  joint  and  several  note  to  B.  and  C,  the  payees 
can  sue  A.  on  his  several  obligation.2  But  if  the  note  be  a 
joint  one  by  a  firm  to  one  of  its  partners,  no  suit  can  be 
brought  on  it  by  him.  An  assignee  or  indorsee  can  sue  on 
it,  however.3  In  like  manner  a  joint  partnership  note  by  one 
firm  to  another  firm,  having  one  partner  in  common,  can- 
not be  sued  by  the  payees,  but  their  assignee  or  indorsee 
•can  sue.4 

§  154.  The  identity  of  the  maker  and  payee  may,  indeed, 
be  more  apparent  than  real ;  as  where  a  payee  intending  to 
indorse  the  note  for  the  purpose  of  transfer  and  guaranty, 
inadvertently  signs  his  name  on  the  face  of  the  note,  under 

ever  a  promissory  note  is  made  by  the  obligor  payable  to  himself  or  to 
his  order,  and  is  signed  on  the  back  thereof  by  the  said  obligor  and  then 
delivered,  such  signature  and  delivery  shall  operate  as  a  promise  to  pay 
the  face  of  the  note  at  maturity  to  the  party  to  whom  the  same  shall  have 
been  delivered,  and  such  party  may  fill  up  the  blank  with  words  of  prom- 
ise and  recover  thereon  in  the  same  manner  as  if  such  party  had  been 
named  as  payee  in  the  note  and  such  note  shall  be  assignable  as  are  other 
promissory  notes,"  1881  G.  S.  Ky.  251  I  13;  Myers'  Supp.  1866  p.  741  \  1. 

'Quisenbury  v.  Artis,  1  Duv.  30  (1863).  But  a  note  by  A.  and  B.  to  B. 
cannot  be  sued  either  by  B.  or  by  his  personal  representatives,  Glenn  v. 
Sims,  1  Rich.  34  (1844) ;  although  it  may  be  sued  bv  B.'s  indorsee,  Woods 
v.  Riley,  11  Humph.  194(1850);  Muldrow  v.  Caldwell,  7  Mo.  563  (1842); 
Smith  v.  Gregory,  75  lb.  121  (1881). 

'Beecham  v.  Smith,  El.  Bl.  &  El.  442  (1S58).  If,  however,  a  note  be  made 
by  A.  and  B.  payable  to  "A.  or  bearer,"  it  has  been  held  in  South  Carolina 
that  a  subsequent  holder  or  "bearer"  may  sue  both  makers,  Devore  v. 
Mundy,  4  Strobh.  15  (1849). 

"Smith  v.  Lusher,  5  Cow.  688  (1825);  Pitcher  v.  Barrows,  17  Pick.  361 
(1835) ;  Davis  v.  Briggs,  39  Me.  301;  Hapgood  v.  Watson,  65  Me.  510  (1876)  ; 
Woodman  v.  Boothby,  66  lb.  389  (1876) ;  Young  v.  Chew,  9  Mo.  App.  387 
(1880);  Walker  v.  Wait,  50  Vt.  668  (1878);  Ormsbee  v.  Kidder,  48  lb.  361 
(1875);  Norton  v.  Downer,  15  lb.  569;  Heywood  v.  Wingate,  14  N.  H.  73 
(1843) ;  Tucker  v.  Bradley,  33  Vt.  324  (1860).  So,  too,  one  partner  cannot 
sue  bis  firm  on  a  joint  partnership  acceptance  of  a  bill  of  exchange  held  by 
him.  Neale  v.  Turton,  4  Bing.  149  (1827).  And  to  the  effect  that  on  a  non- 
negotiable  note  made  by  a  firm  to  one  of  its  partners,  the  makers  cannot  be 
sued  by  the  indorsee,  see  Hill  v.  McPherson,  15  Mo.  130. 

4Murdock  v.  Caruthers,  21  Ala.  7S5  (1852).  And  the  fact  of  there  being 
such  common  partner,  is  not  such  notice  of  a  fraud  on  either  firm  as  to 
affect  the  bona  fide  character  of  an  indorsee  to  whom  such  fact  was  known, 
Stimson  i\  Whitney,  130  Mass.  591  (1881). 


234  FORM THE    PARTIES    DESIGNATED. 

the  maker's  signature.  Such  inadvertence  will  not  render 
the  note  void,  as  if  payable  to  the  maker.1  The  payee  may, 
moreover,  be  a  different  person  of  the  same  name  as  the 
maker,  and  this  has  even  been  held  to  be  the  case  prima 
facie,  where  the  name  is  the  same.2  As  to  such  notes  paya- 
ble to  the  order  of  the  maker,  it  has  been  held  also  that  this 
fact  constitutes  no  ground  of  suspicion  which  can  cast  a 
shadow  on  the  bona  fide  character  of  the  holder's  title.3 
And  the  indorsement  of  the  maker's  name  on  such  a  note 
constitutes  a  forgery,  as  completely  as  the  signature  on  the 
face  might  do.4 

In  the  same  manner  a  bill  of  exchange  may  be  made  pay- 
able to  the  order  of  the  drawer,  and  the  principles  herein 
stated  as  to  notes  payable  to  the  maker's  order  apply  in  gen- 
eral to  such  bills.5  A  bill  drawn  in  this  way  may  be  treated 
at  the  option  of  the  holder  as  a  promissory  note,6  or  an  ac- 
cepted bill.7  Of  the  same  character  are  bills  drawn  by  an 
agent  or  officer  of  a  corporation  on  another  officer,  or  on  the 
corporation  itself.8     But  a  bill  drawn  payable  to  the  drawer's 

'Cason  v.  Wallace,  4  Bush  388  (1868). 

2  Cooper  v.  Poston,  1  Duv.  92  (1863). 

'Roberts  v.  Lane,  64  Me.  108  (1874). 

Commonwealth  v.  Dallinger,  118  Mass.  439  (1875). 

5Byles  90;  Chitty  32,  182;  Story  on  Bills  g  35;  Butler  v.  Crips,  1  Salk.  130 
(1704) ;  Randolph  v.  Parish,  9  Porter  76  (1839) ;  Rice  v.  Hogan,  8  Dana  138- 
(1839);  Hasey  v.  White  Pigeon  B.  S.  Co.,  1  Dougl.  193  (Mich.  1843);  Kas- 
kaskia  Bridge  Co.  v.  Shannon,  6  111.  15  (1844).  So,  an  instrument  in  the 
form  of  a  bill  payable  to  drawer's  order  and  indorsed  in  blank  by  him,  and 
not  accepted,  or  accepted  merely  by  the  drawee's  name  written  across  the 
face  of  the  bill,  may  be  declared  on  as  a  promissory  note  of  the  drawer  in- 
dorsed by  the  drawee,  Armfield  v.  Allport,  27  L.  J.  Exch.  42  (1857). 

6Byles  90;  Chitty  33;  Story  on  Bills  |g  35,  58;  Roach  v.  Ostler,  1  M.  &  Ry. 
120;  Dickinson  v.  Valpy,  10  B.  &  C.  128;  5  M.  &  R.  126  ;  Butler  v.  Crips,  1 
Salk.  130;  Block  v.  Bell,  1  M.  &  Rob.  149;  Starke  v.  Cheesman,  Carth.  509; 
Dehers  v.  Harriot,  1  Show.  163;  Robinson  v.  Bland,  2  Burr.  1077;  Davis  v. 
Clarke,  6  Q.  B.  16;  Randolph  v.  Parish,  9  Porter  76  (1839)  ;  Planters'  Bank 
v.  Evans,  36  Tex.  592  (1872) ;  Wardens  v.  Moore,  1  Ind.  2S9. 

7Cunningham  v.  Wardwell,  12  Me.  466  (1835). 

"Fairchild  v  Ogdensburgh  R.  R.  Co.,  15  N.  Y.  337  (1857) ;  Hasey  v.  White 
Pigeon  B.  S.  Co.,  1  Dougl.  193  (Mich.  1843) ;  Dennis  v.  Table  Mtn.  Water 
Co.,  10  Cal.  369  (1858)  ;  Marion  R.  R.  Co.  v.-  Dillon,  7  lnd.  404;  Marion  R. 
R.  Co.  v.  Hodge,  9  lb.  163  (1857) ;  Hazard  v.  Cole.  1  Idaho  276  (1869};  Taylor 
v.  Newman,  77  Mo.  257  (1883).  But  see,  Wetumpka,  &c,  R.  R.  Co.  v.  Bing- 
ham, 5  Ala.  657  (1843),  where  such  instrument,  it  was  held,  should  be  de- 
clared on  as  a  bill  of  exchange  with  usual  averments  o>f  presentment  for. 
payment  and  dishonor. 


PAYEES — JOINT    OR    ALTERNATIVE.  235 

own  order  does  not  depend  on  the  indorsement  for  its  exist- 
ence, but  if  accepted  and  not  indorsed,  it  is  a  bill  payable 
to  the  drawer,1  on  which  he  may  hold  the  acceptor,  giving 
him  notice  that  he  holds  the  bill  as  payee.2 

§  155.  Payees — Joint — Alternative. — A  note  or  bill  may 
be  payable  to  several  persons  jointly,  using  either  their  in- 
dividual names  or  a  firm  name.  In  the  former  case  such 
note  can  only  be  transferred  by  indorsement  of  all  the 
payees.3  And  neither  payee  can,  of  course,  indorse  the 
names  of  the  others  without  special  authority.4  The  author- 
ity of  an  individual  partner  to  indorse  commercial  paper 
payable  to  his  firm  forms  an  exception  to  the  ordinary  rule. 
But  if  the  firm  transacts  business  in  the  individual  name  of 
one  partner  and  a  note  is  made  payable  to  such  name,  it  will 
be  prima  facie  the  individual  property  of  that  partner.* 
When  a  note  is  made  payable  half  to  one  person  and  half  to 
another,  it  is  still  a  joint  note  on  which  they  may  have  a 
joint  action.6 

On  the  other  hand,  commercial  paper  cannot  be  payable 
in  the  alternative  to  one  or  more  of  several  payees.  Thus, 
it  is  not  sufficient  for  a  note  to  be  made  payable  to  A.  or  B.;T 

'Chittv  182;  Smith  v.  McClure,  5  East  476;  Huling  v.  Hugg,  1  Watts  &  S. 
418  (1841). 

2 Rice  v.  Hogan,  8  Dana  133  (1839). 

3  Wood  v.  Wood,  1  Harr.  428  (N.  J.  1838).  So,  too,  Ryhiner  v.  Feickert,  92 
111.  305  (1879),  although  payment  at  maturity  to  either  would  have  been 
sufficient.  The  survivor  may,  however,  transfer  or  bring  suit  on  it,  Allen  v. 
Tate,  58  Miss.  585  (1881);  Draper  v.  Jackson,  16  Mass.  480  (1820).  But 
where  the  payees  were  man  and  wife,  and  the  husband,  dying  first,  made 
provisions  for  the  wife  in  lieu  of  the  note,  and  such  provision  was  recog- 
nized and  accepted  by  her,  the  note  was  held  to  belong  to  the  estate  of  the 
deceased  husband,  Sanford  v.  San  ford,  45  N.  Y.  723  (1871). 

A  Wood  v.  Wood,  1  Harr.  428  (N.  J.  1838). 

6Boyle  v.  Skinner,  19  Mo.  82  (1853). 

6Flint  v.  Flint,  6  Allen  34  (1863). 

'Byles  90;  Chitty  179?  1  Edwards  g  135;  1  Parsons  33;  Story  on  Bills  § 
55;  Blanckenhagen  v.  Blundell,  2  B.  &  Aid.  417;  Osgood  v.  Pearson,  4  Gray 
455  (1855) ;  Carpenter  v.  Farnsworth,  106  Mass.  561  (1871) ;  Walrad  v.  Petrie, 
4  Wend.  575  (1830).  But  such  note  is  sufficient  evidence  of  a  joint  contract 
to  support  an  action  by  both,  Westgate  v.  Healy,  4  R.  I.  523  (1857).  And 
see,  Spaulding  v.  Evans,  2  McLean  139  (1840),  where  a  note  made  in  Illinois 
to  A.,  B.,  or  C,  was  held  to  be  actionable  by  either  of  them.  While  in 
Willoughby  v.  Willoughby,  5  N.  H.  244  (1830),  such  note  was  held  to  be  joint 
and  only  actionable  in  a  joint  suit  by  A.  and  B. 


236  FORM THE    PARTIES    DESIGNATED. 

or  to  "A.  or  B.,  administrators  of  C."1  In  a  recent  case, 
however,  in  North  Carolina  a  note  payable  to  "Squire  P.  or 
Thomas  Parkin,"  was  construed  to  be  payable  to  both,  "or" 
being  construed  as  "and."2  So,  a  note  to  "A.  B.  or  heirs," 
has  been  held  sufficient.3  Likewise  a  note  to  "A.  B.  or  C. 
B.  his  wife,"  they  being  in  contemplation  of  law  one  person, 
aud  the  note  being  equivalent  to  one  made  to  the  husband 
alone.4  And  a  note  may  be  made  to  the  "trustees  of  the 
Methodist  Church  or  their  collector,"  it  being  the  intention 
to  designate  by  this  means  an  agent  of  the  payee  to  whom 
the  payment  may  be  made.5  So,  too,  a  note  may  be  made 
to  A.,  B.  and  C,  "or  their  order,  or  the  major  part  of  them," 
and  will  support  a  joint  action  by  all.6 

Even  where  a  note  to  "A.  or  B."  is  not  properly  a  prom- 
issory note,  an  action  will  lie  for  tfie  value  paid  for  it  and 
shown  by  it.7  It  has  been  held  that  in  such  case  A.  aud  B. 
are  joint  owners  and  must  join  in  a  transfer  of  it.8     Al- 

^usselman  v.  Oakes,  19  111.  81  (1857). 

2 Parker  v.  Carson,  64  N.  C.  563  (1870). 

sKnight  v.  Jones,  21  Mich.  161  (1870). 

4  Young  v.  Ward,  21  111.  223  (1859).  After  the  husband's  death  such  a 
note  may  be  transferred  by  the  wife  alone,  Prindle  v.  Caruthers,  15  N.  Y. 
425  (1857).  And  where  such  a  note  was  indorsed  after  the  husband's  death 
with  the  name  of  the  maker  and  the  date  of  indorsement,  it  was  held  that 
no  new  promise  was  intended  but  that  the  memorandum  took  the  subsisting 
note  out  of  the  statute  of  limitations,  Bourdin  v.  Greenwood,  L.  R.  13  Eq. 
281  (1871). 

5Noxon  v.  Smith,  9  Cent.  L.  J.  436;  S.  C,  127  Mass.  485  (1879).  In  the 
language  of  Cockburn,  C.  J.,  in  Holmes  v.  Jaques,  L.  R.  1  Q.  B.  376  (1866), 
in  deciding  to  same  effect  upon  a  note  payable  "to  the  trustees  of  the 
Wesleyan  Chapel  or  their  treasurer  for  the  time  being":  "all  this  instru- 
ment shows  is  that  it  is  payable  in  the  first  instance  to  the  trustees,  as 
payees,  but  with  the  option  of  the  maker  to  pay  to  the  treasurer  for  the 
time  being  as  their  agent.  The  treasurer  would  have  no  authority  to  sue 
in  his  own  name  but  only  to  receive  the  money  on  behalf  of  the  trustees. 
I  think  it  would  be  to  introduce  unnecessary  strictness  if  we  were  to  say 
that  this  was  not  a  valid  promissory  note  ;  and  by  holding  that  the  treasurer 
for  the  time  being  is  simply  inserted  as  an  indication  that  he,  as  the  agent 
of  the  trustees,  is  authorized  to  receive  payment  on  their  behalf,  no  uncer- 
tainty is  introduced  into  the  instrument."  So,  too,  Gaytes  v.  Hibbard,  5 
Biss.  C.  C.  100  (1869). 

6  Watson  v.  Evans,  32  L.  J.  Exch.  137 ;  1  H.  &  Colt.  662  (1863). 

7  Walrad  v.  Petrie,  4  Wend.  575  (1830). 

"Quiniby  v.  Merritt,  11  Humph.  440  (1850),  disapproving  EUis  v.  Mc- 
Lemoor,  1  Bailey  13.  But  it  has  been  held  in  Texas  that  a  written  contract 
to  pay  to  either  of  two  persons  may  be  assigned  by  or  paid  to  either  of 
them,  Record  v.  Chisum,  25  Tex.  348  (I860). 


PAYEE'S  NAME AGENT.  237 

though  other  cases  hold  that  either  may  sue  upon  such  an 
instrument.1  And  where  a  note  was  made  to  A.,  B.,  C.  or 
D.,  it  was  held  to  be  several  as  to  all  and  not  joint  as  to  A., 
B.  and  C,  and  A.,  B.  and  C.  were  not  allowed  to  recover  in 
a  joint  action  by  them,  although  it  was  said  that  they  might 
have  sued  separately.2  Moreover,  a  note  may  be  payable  to 
oue  of  two  payees  in  an  alternative  expressed  by  a  condition, 
although  in  such  case  the  condition  destroys  the  negotiability 
of  the  note.  If  a  note  is  made  payable  in  this  manner  to  A., 
"if  she  called  for  it  before  she  died,"  and  if  not,  to  B.,  it  is  paya- 
ble after  A.'s  death  to  B.  and  not  to  the  representatives  of  A.3' 
§  156.  Payee's  Name — Agent,  &c. — Personal  Description. — 
The  general  rule  that  only  those  parties  shall  be  holden  on 
a  bill  or  note,  who  are  plainly  designated  by  name  or  de- 
scription in  the  instrument,  is  in  its  principle  applicable  to 
the  payee's  name  also,  in  determining  questions  of  ownership 
and  right  to  sue.  That  is  to  say,  in  general,  only  the  payee 
or  indorsee  designated  in  the  instrument  can  sue  upon  it 
and  not  any  third  party,  although  it  may  have  been  given  for 
his  benefit.  Thus,  an  agent  purchasing  a  bill  of  exchange  for 
his  principal,  but  making  it  payable  to,  and  indorsing  it 
with,  his  individual  name  only,  is,  as  we  have  seen,  person- 
ally responsible.4  But  where  a  note  for  goods  sold  by  an 
agent  is  made  payable  to  him  individually,  the  principal  is 
at  least  so  far  identified  with  him  as  to  preclude  him  from 
claiming  to  hold  as  a  bona  fide  purchaser  for  value  clear,  of 
equities  existing  between  the  original  parties.5  Prima  facie 
a  note  or  bill  is  the  property  only  of  the  payee  designated 
in  it,  and  only  he  can  sue  as  such  payee.  This  is  true  even 
of  a  note  made  to  a  married  woman  for  a  loan  of  money  by 

'Ellis  v.  McLemoor,  1  Bailey  13  (1828);  Spaulding  v.  Evans,  2  McLean 
139  (1840). 

2Samuels  v.  Evans,  1  McLean  475  (1839).  But  where  a  note  was  made 
to  "A.,  B.,  and  C,  or  the  major  part  of  them,"  all  three  can  bring  a  joint 
action  on  it,  Watson  v.  Evans,  32  L  J.  Exch.  137;  S.  C,  1  H.  &  Colt  662 
(1863). 

8Blanchard  v.  Sheldon,  43  Vt.  512  (1871). 
'Austin  v.  Roberts,  2  Miles  254  (1838). 
6Neil  v.  Cummings,  75  HI.  170  (1874). 


238  FORM THE    PARTIES    DESIGNATED. 

her  husband.1  It  lias,  however,  been  held  that  a  note,  made 
payable  to  A.,  and  sued  upon  by  B.  without  indorsement, 
might  be  shown  by  parol  evidence  to  have  been  made  to  A. 
as  B.'s  representative.2  And  where  a  note  was  made  by  A. 
to  C.  for  B.'s  debt  to  C,  and  not  accepted  or  credited  by  C, 
it  was  held  that  B.  was  'prima  facie  C.'s  agent  in  the  matter 
and  might  sue  on  the  note  in  C.'s  name.3 

If  a  note  is  made  to  "  A.  B.,  agent,"  it  has  been  held  that 
his  principal  may  sue  on  it  in  his  own  name.4  But  the  suf- 
fix may  be  treated  as  a  mere  description  and  the  note  sued 
on  by  the  agent  as  his  individual  property.6  So,  too,  a  draft 
to  "A.  B.,  treasurer,"  will  be  treated  as  payable  to  A.  B.  and 
not  to  the  treasurer  for  the  time  being.6  So,  a  note  to  "A.  B., 
president,"  for  a  firm  doing  business  as  the  People's  Bank, 
may  be  sued  on  by  A.  B.  without  joining  his  partners.7 
And  even  where  the  principal  is  named  in  designating  the 
agent  named  as  payee,  the  agent  may  sue  in  his  own  name, 
e.  g.  a  note  payable  to  "A.  B.,  agent  of  the  P.  H.  Co.  ;"8  or 
to  "A.  B.,  treasurer  of  the  K.  &  A.  R  R.  ;"9  or  to  "A.  B., 
superintendent  of  the  Decatur  Agricultural  Works;"10  or  to 

^ooke  v.  Newman,  75  111.  215  (1874). 

2  Jacobs  v.  Benson,  39  Me.  132  (1855).  And  in  case  of  a  factor's  bank- 
ruptcy, a  note  for  money  due  the  principal  taken  in  the  factor's  name, 
belongs  to  the  principal  and  not  to  the  creditors  of  the  factor,  Messier  v. 
Amery,  1  Yeates  533  (1795). 

3  Overman  v.  Grier,  70  N.  C.  693  (1874). 

1  National  Life  Ins.  Co.  v.  Allen,  116  Mass.  398  (1874).  So,  in  general,  of  an 
undisclosed  principal,  Taunton  Turnpike  v.  Whiting,  10  Mass.  327  (1813). 
.So,  a  note  payable  to  "  C.  B.  M.,  agent,"  may  be  transferred  by  the  princi- 
pal's indorsement,  "Granite  Agricultural  Works,  C.  B.  M.,  agent,"  Farming- 
ton  Savings  Bank  v.  Fall,  71  Me.  49  (1879).  And  a  note  payable  to  "A.  B., 
agent,  his  assignees  or  order,"  cannot  be  sued  by  his  assignees  in  their  own 
name  in  North  Carolina,  Grist  v.  Backhouse,  4  Dev.  &  B.  362  (1839). 

5Toledo  Agricultural  Works  v.  Heisser,  51  Mo.  128  (1872).  So,  too,  in  a 
replevin  suit  for  a  bond  made  payable  to  A.  as  agent  !T>r  B.,  Douglas  v.  Wolf, 
6  Kans.  88  (1878). 

6 Shaw  v.  Stone,  1  Cush.  228  (1848).  But  a  note  made  to  and  indorsed  by 
"R.  B.,  treasurer,"  was  held,  in  New  York,  to  be  payable  to  the  corporation 
and  transferred  by  it,  Babcock  v.  Beman,  11  N.  Y.  200.  See,  too,  McBroom 
v.  Lebanon,  81  Ind.  208  (1869). 

7  Wolcott  v.  Standley,  62  Ind.  198.  See,  too,  Van  Ness  v.  Forrest,  8  Cranch 
30  (1814). 

8Buffum  v.  Chadwick,  8  Mass.  103  (1811). 

9Chadsey  v.  McCreery,  27  HI.  253  (1862). 

10Durfee  v.  Morris,  49  Mo.  55  (1871). 


PAYEE'S    NAME AGENT.  239 

""A.  B.,  lawful  attorney  for  C.  D."1  This  has  been  held  also 
in  the  case  of  a  note  to  "A.  B.,  agent  of  the  proprietors  of 
the  town  of  C,"  although  they  appear  to  have  been  clothed 
with  a  ^orsi-public  character.2  And  where  a  note  was  made 
payable  to  "A.  B.,  permanent  secretary  of  the  Adelphi 
Lodge,"  it  was  held  that  he  might  bring  suit  in  his  own 
name,  by  authority  of  the  members  of  the  lodge,  after  he 
had  ceased  to  be  secretary.3 

§  157.  "Agent,"  "Cashier,"  &c. — Principal  Intended. — 
We  have  seen  that  a  note  payable  to  "A.  B.,  agent," 
may  be  treated  and  sued  upon  as  the  property  of  the  prin- 
cipal. And  this  is  true  a  fortiori  of  a  note  payable  to 
"A.  B.,  agent  of  C.  D."4  So,  too,  of  a  note  made  payable 
to  "A.  B.,  agent  of  the  E.  Ins.  Co.,"  in  consideration  of  a 
policy  of  insurance  issued  by  the  company.5  So,  of  a  note 
to  "A.  B.,  president  of  the  K  R.  K.  ;"6  or  "  G.  W.,  treas- 
urer of  the  I.  M.  Co."7 

And  where  a  note  is  made  to  an  officer  so  designated  "  or 
his  successors  in  office,"  it  is  still  more  plainly  the  property 
of  the  corporation;8  especially  in  the  case  of  a  public 
municipal  corporation.9     And  it  seems  that  such  municipal- 

1  Austell  v.  Rice,  5  Ga.  472  (1848). 

'Bryant  v.  Durkee,  9  Mo.  168  (1855).  As  to  notes  to  public  officers,  see 
infra. 

HVhitcomb  v.  Smart,  38  Me.  264  (1854). 

♦Bean  v.  Dolliff,  67  Me.  228  (1877).  But  if  made  "  to  A.  B.,  for  the  use  of 
C.  D.,"  the  latter  has  only  an  equitable  interest  and  can  neither  transfer  the 
instrument  nor  sue  upon  it  at  common  law  in  his  own  name,  Evans  v. 
Cramlington,  Garth.  5;  Cramlington  v.  Evans,  2  Vent.  307,  affirming;  or  to 
"A.  B.,  agent  for  C.  D.,"  Clark  v.  Reed,  12  Sin.  &  M.  554  (1849). 

R Black  v.  Enterprise  Ins.  Co.,  33  Ind.  223  (1870). 

•Eastern  R.  R.  Co.  v.  Benedict,  5  Gray  561  (1856).  So,  too,  though  his  official 
character  as  president  be  only  designated  by  initial  letters,  Dupont  v.  Mount 
Pleasant  Ferry  Co.,  9  Rich.  255  (1856).  And  parol  evidence  is  admissible  to 
show  that  the  corporation  was  intended,  Lovejoy  v.  Citizens'  Bank,  23  Kans. 
331  (1880). 

'Trustees  v.  Parks,  10  Me.  441  (1833) ;  Vater  v.  Lewis,  36  Ind.  288  (1871) ; 
McBroom  v.  Lebanon,  31  lb.  268  (1869) ;  Rutland,  &c,  R.  R.  Co.  v.  Cole,  24 
Vt.  33  (1851).  But  see,  contra,  as  to  a  note  made  payable  to  "A.  B.,  supt. 
of  the  D.  A.  Works,"  Durfee  v.  Morris,  49  Mo.  55  (1871). 

"Trustees  v.  Park,  supra;  Tainter  v.  Winter,  53  lb.  34S  (1865),  and  suit 
may  l>e  brought  by  the  successor  in  office;  Packard  v.  Nye,  2  Mete.  47 
(1S40);  Fisher  v.  Ellis,  3  Pick.  321  (1825). 

'Town  of  Arlington  v.  Hinds,  1  1).  Chip.  431  (1824);  Garland  v.  Reynolds, 

20  Me.  45  (1841). 


240  FORM THE    PARTIES    DESIGNATED. 

ity  may  sue  on  the  note  in  the  name  of  the  payee's  official 
successor.1  Where,  however,  a  promissory  note  was  made 
to  "A.,  B.  and  C,  trustees  of  the  Apalachicola  Land  Com- 
pany (a  voluntary  association)  or  their  successors  in  office  or 
order,"  it  was  held  that  these  words  might  be  treated  as  mere 
description  and  suit  brought  on  the  note  by  the  survivors, 
A.  and  B.,  although  their  term  of  office  had  expired  and 
their  successors  had  been  appointed.2 

If  the  payee  be  designated  by  his  official  title  only  and 
not  named,  the  corporation  represented  is  with  equal  reason 
the  owner  of  the  note  and  may  bring  suit  upon  it.  This  has 
been  held  in  case  of  a  note,  payable  to  "  the  commissioners 
of  the  V.  C.  R.  R.  ;"3  and  of  a  note  payable  to  "the  treas- 
urer of  the  M.  L.  Inst.  ;"4  and  of  a  note  to  "the  Branch  of 
the  Bank  of  the  State  of  Arkansas."5 

The  office  of  cashier  and  the  cashier's  official  name  have, 
by  constant  usage  of  the  banks  in  the  making  and  transfer 
of  commercial  paper,  become  synonymous  with  the  bank 
itself.  Such  paper  payable  to  the  cashier  of  a  designated 
bank  or  his  order  may  be  held  and  sued  by  the  bank  with- 
out indorsement.6  And  it  is  not  necessary  that  the  bank  be 
named  in  the  instrument,  but  like  effect  will  be  given  to  a 
bill  or  note  payable  to  "A.  B.,  cashier;"7  or  to  "A.  B.,  cas.," 

1  Fisher  v.  Ellis,  3  Pick.  322  (1825).  But  it  has  been  held  that  such  suc- 
cessor cannot  bring  suit  on  it  in  his  own  name,  Upton  v.  Starr,  3  Ind.  508 
(1852). 

2 Davis  v.  Garr,  6  N.  Y.  124  (1851).  But  in  Sayers  v.  First  Nat.  Bank,  89 
Ind.  230  (1883),  it  was  held  that  the  title  was  vested  in  the  corporation,  and 
an  indorsement  "Trustees  of  Indiana  University,  by  A.  B.,  treasurt-r," 
passed  the  title  prima  facie. 

3  Vermont  Central  R.  R.  Co.  v.  Clayes,  21  Vt.  30  (1848). 

'Alston  v.  Heartman,  2  Ala.  699  (1841);  Nichols  v.  Frothingham,  45  Me. 
220  (1858) ;  Vater  v.  Lewis,  36  Ind.  288  (1871).  These  cases  go  further  and 
hold  that  the  suit  must  be  brought  by  the  corporation. 

6 State  B;',nk  v.  Jenkins,  7  Ark.  389  (1846) ;  Bower  v.  State  Bank,  5  lb.  234. 

'Commercial  Bank  v.  French,  21  Pick.  486  (1839);  Nave  v.  First  Nat. 
Bank,  87  Ind.  204  (1882).  And  the  cashier  may  bring  an  action  in  his  own 
name  on  such  paper,  Porter  v.  Nekervis,  4  Rand.  359  (1826).  Or  the  suit 
may  be  in  the  name  of  his  successor,  Dutch  v.  Boyd,  81  Ind.  146  (1SS1). 

'Commercial  Bank  v.  French,  21  Pick.  486  (1839) ;  Stamford  Bank  r.  Fer- 
ris, 17  Conn.  259  (1845);  Haynes  v.  Beckman,  6  La.  An.  224  (1851);  Firm 
Nat.  Bank  v.  Hall,  44  N.  Y.  395  (1871) ;  Lacy  v.  Central  Nat.  Bank.  4  N 
179  (1875) ;  Bank  of  State  of  New  York  v.  Muskinghum  Branch,  29  N.  Y 


PAYEE'S    NAME OFFICIAL.  241 

parol  evidence  being  admitted  to  show  "  cashier  "  intended.1 
In  all  such  cases  parol  evidence  is  admissible,  if  necessary, 
to  show  the  bank  intended  as  payee.2 

§  158.  Payee's  Name— Executor— Public  Officer— Trustee.— 
In  like  manner  the  addition  to  the  payee's  name  of  such 
words  as  "  executor,"  "  administrator,"  "  executor  of  A.  B.," 
&c,  constitutes  mere  description,  and  such  a  bill  or  note  will 
in  general  be  treated  as  the  individual  property  of  the  payee 
and  may  be  sued  by  him  as  such.3  But  where  the  payee's 
letters  testamentary  have  been  revoked  and  the  will,  under 
which  he  acted,  set  aside,  it  seems  that  he  can  no  longer  sue 
on  such  a  note,  but  that  the  action  must  be  brought  by  the 
administrator  de  bonis  non* 

A  distinction  is  made,  however,  between  private  agents 
and  public  officers,  which  is  also  the  case,  as  we  have  seen, 
where  they  are  makers  or  indorsers.  Thus,  a  tax  collector 
cannot  sue  in  his  individual  name  on  a  note  given  to  him  as 
collector  for  taxes.5     If,  however,  he  had  paid  the  taxes  of 

619  (1864) ;  Bank  of  Manchester  v.  Slason,  13  Vt.  334  (1841) :  Rutland,  &c, 
R.  R.  Co.  v.  Cole,  24  lb.  33  (1851) ;  Nave  v.  Hadley,  74  Ind.  155  (1881) ;  Wright 
r.  Boyd,  3  Barb.  523  (1848) ;  Pratt  v.  Topeka  Bank,  12  Kans.  570  (1874).  But 
see,  contra,  Bank  of  United  States  v.  Lyman,  20  Vt.  666  (1848).  And  suit 
may  be  brought  by  the  cashier  in  his  individual  name,  Fairfield  v.  Adams,  16 
Pick.  381  (1835);  McHenrv  v.  Ridgelv,  3  111.  309  (1840);  Barney  v.  New- 
comb,  9  Cush.  46  (1851);  Garton  v.  Union  City  Nat,  Bank,  34  Mich.  279 
(.1876);  Johnson  v.  Catlin,  27  Vt.  87  (1854).  So  held  also  as  to  a  bond, 
Horah  v.  Long,  4  Dev.  &  B.  274  (1839). 

'Bank  of  Genesee  v.  Patchin,  19  N.  Y.  312  (1859) ;  Bank  of  State  of  New 
York  v.  Muskinghum  Branch,  29  lb.  619  (1864) ;  Farmers'  and  Mechanics' 
Bank  v.  Lay,  13  Vt.  36  (1841). 

'Baldwin  v.  Newbury,  1  How.  234  (1863) ;  Bank  of  State  of  New  York  v. 
Muskinghum  Branch,  29  N.  Y.  619  (1864). 

3Thomas  v.  Relfe,  9  Mo.  373  (1845) ;  Moss  v.  Witcher,  35  Tex.  388  (1871) ; 
Carter  v.  Saunders,  2  How.  851  (Miss.  1838)  ;  Cravens  v.  Logan,  7  Ark.  103 
(1845);  Speelman  v.  Culbertson,  15  Ind.  441  (1860).  So,  a  note  to  the 
order  of  A.  B.,  as  guardian,  may  be  transferred  by  his  indorsement,  and 
the  indorsee  may  sue  upon  it  in  his  own  name,  Dorr  v.  Davis,  76  Me.  301 
\1884). 

♦Leach  v.  Lewis,  38  Ind.  155  (1871). 

5Dickson  v.  Gamble,  16  Fla.  687  (1878).  So,  a  note  made  payable  to  an 
Indian  agent  of  the  U.  S.  government  in  an  official  transaction,  Balcombe 
r.  Northrup,  9  Minn.  172  (1864);  or  to  a  land  agent  of  the  State,  Irish  v. 
VWl.ster,  5  Me.  171  (1827) ;  State  v.  Boies,  11  lb  474  (1834).  But  not  so  in 
the  case  of  a  note  payable  to  "A.  B.,  agent  of  the  proprietors  of  the  town 
of  C.,"  Bryant  v.  Durkee,  9  Mo.  168  (1855).  In  like  manner  suit  may  be 
maintained  by  the  U.  S.  government  on  a  bill  of  exchange  payable  to"  the 

Q 


242  FORM THE    PARTIES   DESIGNATED. 

the  maker  and  the  note  was  given  on  account  of  such  pay- 
ment, the  note  would  be  no  bar  to  a  suit  upon  the  original 
consideration,  although  the  note  had  been  made  originally  to 
A.  B.  and  altered  and  made  void  by  addition  of  "  collector  " 
to  his  name.1  On  the  other  hand,  it  seems  that  a  bill  of  ex- 
change, payable  to  "  the  Treasurer  General  of  the  Royal 
Treasury  of  Portugal  "  and  delivered  to  A.  B.  as  such,  might 
be  indorsed  and  transferred  by  A.  B.  after  leaving  office. 
And  where  a  bill  made  payable  in  this  way  was  indorsed  by 
A.  B.,  still  being  Treasurer  General,  after  the  government 
which  he  first  served  had  been  changed  by  revolution,  the 
title  of  such  later  government  and  of  the  indorsee  could  not 
be  questioned.2 

As  we  have  seen,  an  official  assignee  is  a  quasi-public 
officer,  and  a  note  made  to  "A.  B.,  assignee,"  and  so  indorsed 
by  him,  will  not  render  him  personally  liable  as  indorser.3 

It  remains  only  for  us  to  consider  in  this  place  the  effect 
of  an  official  title  in  the  payee  as  notice  to  subsequent  hold- 
ers of  a  trust  lodged  in  the  payee.  A  bill  or  note  made 
payable  in  this  way  is  generally  held  to  carry  on  its  face  a 
notice  to  all  takers  of  the  fiduciary  character  of  the  holder. 
This  has  been  held  in  the  case  of  a  note  payable  to,  and  in- 
dorsed by,  "A.  B.,  Sheriff."4  In  like  manner  a  note  paya- 
ble to,  and  indorsed  by,  "A.  B.,  trustee,"  is  not  negotiable, 
and  its  transfer  is  subject  to  equitable  defenses  between  the 
original  parties.5  It  has  been  held,  however,  in  Minnesota, 
that  a  note  payable  to,  and  indorsed  by,  "A.  B.,  trustee  of 

treasurer  of  the  United  States  by  name  and  official  designation,  Dugan  v. 
United  States,  3  Wheat.  172  (1818);  Crowell  v.  Osborne,  14  Vroom  335 
(1881). 

1  York  v.  James,  14  Vroom  332  (1881). 

2Soares  v.  Glyn,  8  Q.  B.  24  (1845). 

3Bowne  v.  Douglass,  38  Barb.  312  (1862). 

4Renshaw  v.  Mills,  38  Mo.  201  (1866).  But  see,  contra,  Fletcher  v.  Schaum- 
berg,  41  Mo.  501  (1867). 

5Third  Nat.  Bank  v.  Lange,  51  Md.  138  (1878).  In  like  manner  a  certifi- 
cate of  stock  standing  in  the  name  of  "A.  B.,  trustee,"  puts  a  pledgee  on 
inquiry  as  to  the  character  of  the  trust,  and  the  transfer  is  at  his  risk,  Shaw 
v.  Spencer,  100  Mass.  382  (1868).  See,  too,  Sturtevant  v.  Jaqnes,  14  Allen 
523;  Bancroft  v.  Consen,  13  lb.  50.  But  see,  contra,  Bush  v.  Peckard,  3  Har- 
ring.  385  (Del.  1841). 


I 


PAYEE'S    NAME BEARER.  243 

O.  D.,"  does  not  carry  to  an  innocent  purchaser  any  notice 
of  a  restriction  upon  the  payee's  right  to  transfer  it.1 

§  159.  Payee's  Name — "A.  B.  or  Bearer" — Presumption  as 
to  Value. — A  bill  of  exchange,  note  or  check  may  be  and 
frequently  is  made  payable  to  "bearer."  This  term,  unless 
restricted  by  statute,  indicates  the  holder,  whoever  he  may 
be.  The  distinction,  however,  between  the  original  payee 
and  subsequent  holders  remains  unchanged  as  regards  the 
admissibility  of  equitable  defenses,  the  original  bearer  being 
subject  to  all  defenses  which  would  have  affected  him  if  he 
had  been  named  as  payee  in  the  instrument.  The  burden 
of  proof  as  to  whether  the  holder  is  the  original  payee  or  a 
subsequent  purchaser  and  holder  for  value  is  a  matter  re- 
served for  discussion  in  a  later  part  of  this  work. 

Commercial  paper  payable  to  bearer  is  at  common  law 
transferable  by  delivery  without  indorsement.2  It  is  now 
common  to  draw  railroad  and  other  corporation  bonds  pay- 
able to  bearer,  and,  as  we  have  already  seen,  such  bonds 
possess  many,  if  not  all,  the  characteristics  of  commercial 
paper.3  It  was  formerly  held  that  a  bond  could  not  be 
made  payable  to  bearer,  but  might  be  indorsed  by  the  payee 
named  in  it  so  as  to  become  payable  to  the  bearer.4  But  a 
declaration  upon  a  corporation  bond  payable  to  bearer  need 
not  now  show  to  whom  it  was  first  delivered,  although  the 
bond  be  registered  and  by  the  rules  of  the  company  trans- 
ferable only  on  its  books.5  Coupons  for  interest  payable  to 
bearer  and  detached  from  their  bonds  are  likewise  negotiable 
instruments  and  pass  by  delivery.6 

'Downer  v.  Read,  17  Minn.  493  (1871). 

"Chitty  180;  1  Daniel  109;  1  Edwards  §139;  1  Parsons  30;  Story  on  Bills 
\  56;  Story  on  Prom.  Notes  \  36;  Grant  v.  Vaughan,  3  Burr.  1526;  Billiard 
v.  Bell,  1  Mason  C.  C.  243  (1817) ;  Wilbour  v.  Turner,  5  Pick.  526  (1827)  ; 
Sprowl  v.  Simpkins,  3  Ala.  515  (1842) ;  Edison  v.  Frazier,  9  Ark.  219  (1848) ; 
Tillman  v.  Ailles,  5  Sm.  &  M.  373  (1845);  Avery  v.  Latimer,  14  Ohio  542 
(1846);  Jones  v.  Westcott,  2  Brev.  166  (1807). 

sSee  Chapter  III. 

4  Marsh  v.  Brooks,  11  Ired.  409  (1850). 

6 Savannah,  &c,  R.  R.  Co.  v.  Lancaster,  62  Ala.  555  (1878). 

•Walnut  v.  Wade,  13  Otto  683  (18S0) ;  Concord  v.  National  Bank  of  Derby 
Lino,  51  Vt.  144;  First  Nat.  Bank  v.  Mt.  Tabor,  52  lb.  93  (1879). 


244  FORM THE    PARTIES    DESIGNATED. 

The  common  law  rule  making  notes  and  bills,  which  are 
payable  to  bearer,  transferable  by  delivery,  has  been  re- 
stricted in  Indiana  to  notes  made  payable  at  a  bank  in  that 
State.1  And  in  Alabama  such  notes  and  bills  are  only  trans- 
ferable by  delivery  if  made  by  a  bank  and  "issued  to  circu- 
late as  money."2  In  other  cases  they  are  transferable  only 
by  indorsement  or  assignment;3  and  the  bearer  cannot  bring 
suit  in  his  own  name.4 

In  an  early  case  in  Massachusetts  it  was  held  that,  in  the 
absence  of  "value  received"  or  other  similar  words  importing 
consideration,  the  holder  of  an  order  payable  to  bearer  must 
show  himself  to  be  a  holder  for  value.5  In  general,  however, 
it  is  true  of  commercial  paper  payable  to  bearer,  as  in  the 
case  of  a  payee  designated  by  name,  that  the  holder  is  pre- 
sumed to  be  a  holder  for  value.6  This  presumption  is 
changed  and   the   burden  of  proof  in  respect  to  value  is 

>McNitt  v.  Hatch,  4  Blackf.  531  (1838). 

2  "All  bonds,  bills  or  notes,  except  those  issued  to  circulate  as  money,  pay- 
able to  anything  or  bearer,  to  any  fictitious  person  or  bearer,  or  to  bearer 
only,  must  be  construed  as  payable  to  the  person  from  whom  tbe  considera- 
tion moved;  if  payable  to  an  existing  person  or  bearer,  must  be  construed 
as  if  payable  to  such  person  or  order,"  Ala.  Code  1876  §  2098;  Code  1852  \ 
1529.  The  statute  of  Alabama  entitled  an  "Act  to  prevent  the  institution 
of  illegal  and  oppressive  suits  in  the  United  States  courts  in  this  State,"  ap- 
proved June  30th,  1837  (Meek's  Supp.  108  \  1),  provides  that  "all  bonds, 
bills  or  notes  which  shall  be  made  payable  to  any  person  or  persons  or 
bearer,  or  to  any  corporation  or  bearer,  shall  have  the  effect  of  creating  an 
obligation  or  liability  in  favor  of  the  corporation  or  person  or  persons  only 
to  whom  any  such  bond  or  note  may  be  expressly  made  payable,  and  no 
one  but  such  person  or  persons  or  their  indorsee  or  personal  representative 
shall  have  a  right  to  maintain  in  his  own  name  an  action  upon  any  such 
bond,  bill  or  note."  This  act  has  been  held  not  to  apply  to  such  bond,  bill 
or  note  issued  by  a  banking  association,  Kemper,  &c,  Banking  Co.  v. 
Schieffelin,  5  Ala.  493  (1843). 

3"A11  bonds,  contracts  and  writings  for  the  payment  of  money  or  other 
thing,  or  the  performance  of  any  act  or  duty,  are  assignable  by  indorsement, 
so  as  to  authorize  an  action  thereon  by  each  successive  indorsee,"  Ala.  Code 
1876  \  2099;  Code  1852  (1530).  This  applies  also  to  a  non-negotial.le 
corporation  bond  payable  to  bearer,  Blackmail  v.  Lehman,  63  Ala.  547 
(1879). 

4  Clark  v.  Field,  1  Ala.  468  (1840).  As  to  the  effect  of  this  statute  in  an 
action  brought  in  Mississippi  on  an  Alabama  note,  see  Hemphill  t>.  Bank 
of  Alabama,  6  Sm.  &  M.  44  (1846). 

6Ball  v.  Allen,  15  Mass.  433  (1819). 

•Mauran  v.  Lamb,  7  Cow.  174  (1827). 


A.    B.    OR    BEARER.  245 

thrown  on  the  holder,  if  the  note  be  proved  to  have  been 
lost  or  stolen  from  a  former  rightful  owner.1 

§  160.  "A.  B.  or  Bearer"— "A.  B.,  Bearer"— "A.  or 
Holder." — At  common  law  a  bill  or  note  payable  to  "A.  B. 
or  bearer,"  is  equivalent  to  one  payable  to  bearer  only.2 
And  this  is  true  also  of  a  note  payable  to  "A.  B.  or  holder."3 
Such  note  or  bill,  like  one  payable  to  bearer,  is  transferable 
by  delivery.4  The  holder  is  prima  facie  the  lawful  owner 
and  need  not  prove  title  to  the  paper.5  And  the  declaration 
on  such  a  note  need  only  aver  possession,  without  alleging 
any  express  promise  to  the  plaintiff.6  So,  too,  if  it  have 
been  transferred  by  the  indorsement  of  A.  B.,  the  indorse- 
ment need  not  be  proved.7  And  such  a  note  may  be  deliv- 
ered in  the  first  instance  to  any  person  without  regard  to  the 
name  of  A.  B.  in  it.8  But  a  distinction  was  formerly  made 
in  Ohio  as  to  transfer  by  delivery  between  such  notes  and 
sealed  notes  payable  to  "A.  B.  or  bearer,"  and  it  was  held 
that  a  sealed  note  so  payable  could  only  be  transferred  by 
indorsement.9 

In  Illinois  a  distinction  is  made  between  notes  and  bills 
payable  to  "  bearer  "  and  those  payable  to  "A.  B.,  or  bearer," 

1  Jones  v.  Westcott,  2  Brev.  166  (1807).  And  where  a  note  payable  to  A. 
3.  or  hearer  was  in  the  hands  of  the  payee  a  few  days  before  his  death,  he 
■dying  intestate  and  in  debt,  and  was  afterwards  held  and  negotiated  by  his 
widow  without  letters  of  administration,  it  was  held  to  be  prima  facie  part 
of  the  payee's  estate  unlawfully  transferred,  Lounsbury  v.  Depew,  28  Barb. 
47  (1858). 

'Ellis  v.  Wheeler,  3  Pick.  18  (1825);  Eddy  v.  Bond,  19  Me.  461  (1841); 
Smith  v.  Clopton,  4  Tex.  109  (1849) ;  McDonald  v.  Harrison,  12  Mo.  447 
(1849). 

'Putnam  v.  Crymes,  1  McMull.  9  (18,40). 

*Ib.  But  a  note  payable  to  "A.  B.  or  bearer  *  *  *  to  be  kept  in  the 
hands  of  P.  T.,"  is  not  transferable  by  delivery  bv  reason  of  the  restriction 
•contained  in  it,  Truesdell  v.  Thompson,  12  Mete.  565  (1847).  See,  too,  Beek- 
man  v.  Wilson,  9  lb.  434. 

'Dole  v.  Weeks,  4  Mass.  451  (1808) ;  Ellis  v.  Wheeler,  3  Pick.  18  (1825) , 
Eddy  v.  Bond,  19  Me.  461  (1841) ;  McDonald  v.  Harrison,  12  Mo.  447  (1849). 

•Dole  v.  Weeks,  4  Mass.  4-51  (1S08) ;  Gilbert  v.  Nantucket  Bank,  5  lb.  97 

(1809). 

7Willbour  v.  Turner,  5  Pick.  526  (1827). 
'Gage  v.  Sharp,  24  Iowa  15  (1867). 
*Avery  v.  Latimer,  14  Ohio  542  (1846). 


246  FORM THE    PARTIES    DESIGNATED. 

and  the  latter  can  only  be  transferred  by  indorsement.* 
This  is  so  also  in  Missouri,  or  was  so  held  in  1838  by  an 
apparently  forced  construction  of  a  statute  existing  in  the 
same  form  in  many  States.2  The  same  rule  is  expressly  laid 
down  by  statute,  already  cited,  in  Alabama,3  although  a  dif- 
ferent rule  prevailed  there  prior  to  1837.*  A  similar  dis- 
tinction in  Texas  was  held  not  to  apply  to  such  a  note  in- 
dorsed in  blank  by  A.  B.,  until  its  transfer  was  again 
restricted  by  special  indorsement.5 

Where  a  note  is  made  payable  "  to or  bearer,"  the 

original  holder  may  sue  upon  it  without  filling  the  blank,  on 
averment  and  proof  that  the  note  was  delivered  to  him  by 
the  maker  and  that  he  is  the  owner  and  bona  fide  holder 
of  it.6 

As  we  have  seen,  other  words,  such  as  "  holder,"  may  be 
used  with  the  same  effect  as  the  word  "  bearer."  Thus,  if  a 
note  be  payable  "  to  the  order  of  the  indorser,"  it  may  be 
sued  on  by  any  bona  fide  holder.7  But  a  note  payable  to 
"A.  B.,  bearer,"  is  a  note  payable  to  A.  B.  only  and  not  to 
bearer,  and  is  non-negotiable.8  On  the  other  hand,  if  a  note 
made  by  two  persons  be  payable  to  one  of  them  "  or  bearer," 
the  bearer  may  sue  both  makers  although  the  payee  named 
could  not  do  so.9 

§  161.    Payee's    Name — Fictitious. — Notes   and    bills   are 

Marvin  v.  Wiswell,  83  111.  215  (1876);  Wilder  v.  De  Wolf,  24  lb.  190 
(1860) ;  Roosa  v.  Crist,  17  lb.  450  (1856) ;  Hilborn  v.  Artis,  4  lb.  344.  The 
Illinois  statute  provides  that  any  note,  &c,  "payable  to  any  person  named 
as  payee  therein  shall  be  assignable  bv  indorsement  thereon,"  &c,  1880  R. 
S.  726  I  4. 

*Beatty  v.  Anderson,  5  Mo.  447  (1838),  under  the  provision  of  the  statute 
(R.  C.  104)  making  it  "due  and  payable  as  therein  expressed." 

"Clark  v.  Field,  1  Ala.  468  (1840) ;  Carew  v.  Northrup,  5  lb.  367  (1843). 

4Sprowl  v.  Simpkins,  3  Ala.  515  (1842).  Even  though  such  note  be  made 
by  an  unchartered  bank,  Kemper,  &c,  Banking  Co.  v.  Schieffelin,  5  Ala.  493 
(1843). 

6Johnson  v.  Mitchell,  50  Tex.  212  (1878). 

"Rich  v.  Starbuck,  51  Ind.  87  (1875). 

7United  States  v.  White,  2  Hill  59  (1841). 

8  Warren  v.  Scott,  32  Iowa  22  (1871).  So,  an  instrument  reading/' Due  to 
the  bearer,  five  pounds,  which  I  promise  to  pay  to  A.  or  order,"  Cock  f. 
Fellows,  1  Johns.  143  (1806). 

9Devore  v.  Mundy,  4  Strobh.  15  (1849). 


PAYEE    FICTITIOUS.  247 

sometimes  made  payable  to  the  order  of  a  fictitious  person, 
where  this  is  not  forbidden  or  restricted  by  statute.  Such 
paper  is  treated  in  general  as  if  made  payable  to  bearer.1 
And  this  is  the  force  likewise  of  a  bill  or  note  payable  to  a 
fictitious  person  "or  bearer."2  Of  the  same  force  is  a  bill 
or  note  payable  to  "bills  payable;"3  or  to  "the  order  of 
1658  ;"4  or  "to  number  100  or  bearer;"5  or  "to  J.  S.  or 
ship  Fortune  or  bearer."6 

In  the  same  way  the  name  used  may  be  unintentionally 
that  of  a  real  person.  Such  name  is  still  simply  that  of  a 
fictitious  payee,  and  the  bearer  can  recover  on  the  paper 
without  indorsement.7  Or  the  name  of  the  payee  may  be 
mistaken  for  a  correct  name  that  is  similar  to  it,  e.  g.  "  E.  S. 
&  Sons  "  for  "  E.  S.'  Sons."  In  such  case  the  parties  in- 
tended may  recover,  as  on  an  instrument  payable  to  a  ficti- 
tious person.8  So,  too,  a  note  payable  to  a  non-existing 
corporation  has  a  fictitious  payee;9  or  a  note  payable  to  and 
indorsed  by  a  firm  after  the  death  of  one  of  the  partners.10 

So,  a  note  for  payment  "  to  order  "  simply,  may  be  sued 
upon  by  the  bearer  as  payable  to  a  fictitious  payee.11  And 
the  same  thing  is  said  of  a  note  made  payable  to  the  order 
of  A.  for  the  purpose  of  raising  money,  but  actually  nego- 

^yles  85;  Chitty  181;  1  Daniel  141;  1  Edwards  §  136;  1  Parsons  82; 
Story  on  Bills  §  56;  Story  on  Prom.  Notes  I  39;  Ex  parte  Roval  Burgh  of 
Scotland,  19  Ves.  311;  Hunter  v.  Jefferv,  Peake  Add.  146;  Phillips  v.  Im. 
Thurn,  18  C.  B.  (n.  s.)  694,  L.  R.  1  C.  P.  463 ;  Stevens  v.  Strang,  2  Sandf.  138 
(1848) ;  Farnsworth  v.  Drake,  11  Ind.  101  (1858) ;  Foster  v.  Shattuck,  2  N.  H. 
446  (1822)  ;  Kohn  v.  Watkins,  26  Kans.  691  (1881). 

2State  of  Nevada  v.  Cleveland,  6  Nev.  181  (1870). 

3  Willets  v.  Phoenix  Bank,  2  Duer  121  (1853) ;  Mechanics'  Bank  v.  Straiton, 
3  Keyes  365;  5  Ahh.  Pr.  (n.  s.)  11  (1867). 

*  Willets  v.  Phoenix  Bank,  2  Duer  121  (1853). 

5Ball  v.  Allen,  15  Mass.  433  (1819),  no  consideration  being  imported  where 
none  expressed. 

6 Grant  v.  Vaughan,  3  Burr.  1526. 

'Foster  v.  Shattuck,  2  N.  H.  446  (1822). 

8 Stevens  v.  Strang,  2  Sandf.  138  (1848).  And  such  a  note  is  within  the 
New  York  statute  relating  to  fictitious  payees,  1  R.  S.  768  \  5. 

9  Farnsworth  v.  Drake,  11  Ind.  101  (1858). 

|°Cavitt  v.  James,  39  Tex.  189  (1873).  In  such  case  the  maker  is  liable 
without  indorsement. 

11  Davega  v.  Moore,  3  McCord  482  (1826). 


248  10RM — THE    PARTIES    DESIGNATED. 

tiated  to  B.  for  value  paid  by  him.1  On  the  contrary,  where 
the  maker  had  indorsed  such  a  note  in  the  payee's  name,  it 
was  held  that  the  holder  could  not  treat  A.  as  fictitious  and 
sue  without  his  indorsement.2  But  if  the  holder  treats  as 
fictitious  the  name  of  a  real  payee  forged  by  the  maker,  the 
maker  has  been  held  to  be  estopped  from  any  contest  on  that 
ground.3  It  is  evident  that  in  this  regard  the  acceptor's 
position  is  quite  different  from  that  of  the  drawer.  But 
where  he  has  accepted  the  bill  and  paid  it  to  a  bona  fide 
holder  under  such  an  indorsement  by  the  drawer,  he  cannot, 
after  the  drawer's  insolvency,  recover  the  money  paid.4 

§  162.  Payee  Fictitious — Transfer — Forgery. — Where  the 
payee's  name  is  fictitious,  it  may  be  indorsed  on  the  paper 
by  the  person  to  whom  the  bill  or  note  is  delivered.5  But  a 
fraudulent  indorsement  of  a  fictitious  payee's  name  will  con- 
stitute a  forgery.6  If  a  note  or  bill  is  payable  to  a  fictitious 
person  "  or  bearer,"  he  may  make  title  without  indorse- 
ment.7 And  if  the  instrument  be  payable  to  an  assumed 
name,  the  holder  may  aver  himself  to  be  the  person  in- 
tended, and  parol  evidence  will  be  admitted  to  prove  this.8 
But  the  burden  is  on  the  holder  to  prove  that  the  payee 
named  is  a  fictitious  person.9  And  where  there  is  neither 
drawee  named  nor  recital  of  "  value  received,"  the  holder  of 
an  order  must  prove  that  he  paid  value  for  it.10 

■Hunt  v.  Aldrich,  27  N.  H.  31  (1853) ;  Elliot  v.  Abbot,  12  lb.  549  (1842) ; 
Cross  v.  Rowe,  22  lb.  77  (1850).  See,  too,  Hortsman  v.  Henshaw,  11  How. 
177  (1850).  But  in  Illinois  such  a  note  is  invalid,  First  Nat.  Bank  v. 
Strang,  72  111.  559  (1874).  In  Elliot  v.  Abbot,  supra,  it  was  held  that  the 
holder  could  not  sue  as  indorsee,  although  he  had  procured  the  nominal 
payee's  indorsement  after  the  maturity  of  the  note. 

2  Rogers  v.  Ware,  2  Neb.  29. 

3Meacher  v.  Fort,  3  Hill  227  (So.  Car.  1837). 

4  Hortsman  v.  Henshaw,  supra. 

5Blodgett  v.  Jackson,  40  N.  H.  21  (1859). 

•Chitty  182;  Sex  v.  Taft,  Leach  Cro.  L.  172;  Tatlock  v.  Harris,  3  T.  R.  174; 
Vere  v.  Lewis.  lb.  182;  Minet  v.  Gibson,  lb.  482,  1  H.  Bl.  569;  Collis  v. 
Emmett,  1  H.  Bl.  313. 

7  Lane  v.  Krekle,  22  Iowa  399  (1867). 

"Chenot  v.  Lefevre,  8  111.  637  (1846). 

9Maniort  v.  Roberts,  4  E.  D.  Smith  83  (1855). 

10Ball  v.  Allen,  15  Mass.  433  (1819). 


PAYEE    FICTITIOUS. 


249 


§  163.  Payee  Fictitious — Innocent  Parties. — Where  the 
holder  himself  at  the  time  he  received  such  a  bill  knew  that 
the  payee  was  fictitious,  and  discounted  the  bill  for  the 
drawer's  accommodation,  he  cannot  recover  against  the  ac- 
ceptor, although  the  acceptance  was  made  with  like  knowl- 
edge of  the  facts.1  A  note  payable  to  the  order  of  a  fictitious 
person  is,  however,  valid  as  a  note  payable  to  bearer  in  the 
hands  of  all  parties  against  the  maker  and  against  all  parties 
with  notice  by  force  of  statute  in  many  States.2 

As  a  general  rule  all  parties  having  knowledge  of  the 
fictitious  character  of  the  payee's  name  are  liable  on  the 
paper  at  suit  of  a  bona  fide  holder  for  value.3  This  is 
the  case  also  with  reference  to  fictitious  names  forged  by  the 
person  negotiating  the  paper,  and  with  reference  to  paper 
negotiated  by  the  drawer  with  a  forged  signature  and  in- 
dorsement."1 

§  164.  Where  an  acceptor  has  knowledge  of  the  fictitious 
character  of  the  payee's  name  and  indorsement,  he  is  liable 
upon  the  paper  to  a  bona  fide  holder.5  And  where  a  bill  of 
exchange  is  drawn  by  an  arrangement  between  B.  and  C.  in 
the  name  of  a  fictitious  person,  A.,  and  to  the  order  of  A., 
and  is  accepted  by  B.  and  indorsed  to  C,  B.  is  liable  upon 

'Chitty  181 ;  1  Edwards  §  136 ;  Hunter  v.  Jeffery,  Peake  Add.  146. 

2Maniort  v.  Roberts,  4  E.  D.  Smith  83  (1855).  But  the  maker  must  have 
known  the  fictitious  character  of  the  payee  when  he  executed  the  note,  lb. 
As  to  what  knowledge  of  facts  is  necessary  by  the  statute  of  New  York,  see 
Irving  Nat.  Bank  v.  Alley,  79  N.  Y.  536  (1880).  For  the  statute  of  New 
York  and  other  States  on  this  point,  see  infra  §  169. 

3Byles  84;  Chitty  181;  1  Edwards  \  136;  Ex  parte  Royal  Burgh  of  Scot- 
land, 19  Ves.  311;  Hunter  v.  Jeffery,  Peake  Add.  146;  Ex  parte  Clarke,  3 
Bro.  C.  C.  238.  This  was  first  held  in  Stone  v.  Ireland  at  Nisi  Prius  A.  D. 
1769,  cited  1  H.  Bl.  316,  and  at  Bar,  in  Tatlock  v.  Harris,  2  T.  R.  174.  See, 
too,  Vere  v.  Lewis,  3  T.'R.  182;  Minet  v.  Gibson,  lb.  481,  1  H.  Bl.  569;  Collis 
v.  Emmett,  1  H.  Bl.  313;  Gibson  v.  Hunter,  2  H.  Bl.  187,288;  Ex  parte 
Clarke,  3  Bro.  C.  C  238 ;  Thicknesse  v.  Bromilow,  2  Cromp.  &  J.  425 ;  Forbes 
v.  Espy,  21  Ohio  St.  474  (1871)  ;  McCall  v.  Corning,  3  La.  An.  409  (1848); 
Farnsworth  v.  Drake,  11  Ind.  101  (1858). 

*An  acceptor  negotiating  a  bill  payable  to  the  drawer's  order,  knowing 
the  drawer's  signature  and  indorsement  to  be  forged,  cannot  deny  either 
drawing  or  indorsement,  Beeman  v.  Duck,  11  M.  &  W.  251  (1S43).  Whether 
such  an  instrument  should  not  be  declared  on  as  payable  to  bearer,  quere, 
Jb.;  Gibson  v.  Minet,  1  H.  Bl.  569  ;  Bennett  v.  Farnel'l,  1  Campb.  130. 

5 Hunter  v.  Blodget,  2  Yeates  480  (1799). 


250  FORM THE    PARTIES    DESIGNATED. 

his  acceptance  even  to  C,  and  is  estopped  from  setting  up> 
the  fictitious  character  of  the  payee.1  In  order  to  hold  the 
acceptor  on  a  bill  payable  to,  and  indorsed  in,  a  fictitious 
name,  being  the  name  of  the  drawer  also,  it  is  only  necessary 
to  j^rove  the  signature  and  indorsement  to  have  been  made 
by  the  same  person.2  It  has  also  been  held  that  one  who 
accepts  a  bill,  knowing  the  name  of  the  payee  and  indorser 
to  be  fictitious,  is  liable  to  a  bona  fide  holder  for  value  on  the 
common  money  counts.3 

As  evidence  of  the  acceptor's  knowledge  in  such  case  the 
circumstance  of  other  similar  acceptances  is  admissible.4 
And  in  an  action  on  such  paper  by  a  bona  fide  holder  against 
the  acceptor,  the  plaintiff  need  not  prove  consideration  in 
the  first  instance.5 

In  England  it  has  been  held  that  a  bill  payable  to  a  ficti- 
tious payee  is  not  equivalent  to  one  payable  to  bearer  in  a 
suit  against  a  party  not  knowing  of  the  fictitious  character 
of  the  payee.6  But  in  a  more  recent  case  it  was  held  that 
one  who  accepted  such  a  bill  for  the  honor  of  the  drawer  was 
liable  upon  it  by  force  of  an  estoppel,  although  ignorant  of 
the  payee's  name  being  fictitious,  and  although  the  drawer's 
signature  had  been  forged.7  And  it  has  been  held  in  the 
United  States  that  where  one  pretending  to  be  the  agent  of 
the  fictitious  owner  of  a  patent  right,  sold  it  and  took  a  note 
for  the  purchase-money,  the -maker  of  the  note  was  liable 

^sphitel  v.  Bryan,  32  L.  J.  Q.  B.  91,  33  lb.  328;  S.  C.,  3  B.  &  S.  474  (1863). 

2  Cooper  v.  Meyer,  10  B.  &  C.  468. 

3Tatlock  v.  Harris,  3  T.  R.  174. 

♦Gibson  v.  Hunter,  2  H.  Bl.  187,  288.  It  is  maintained,  however,  by  Mr. 
Daniel  (1  Daniel  Negot.  Inst.  118)  that  the  acceptor  is  liable  whether  he 
have  notice  of  the  fictitious  character  of  the  payee's  name  or  not.  But  the 
cases  cited  by  him  appear  to  apply  this  rule  only  where  the  maker  has  by 
his  words  or  conduct  raised  an  estoppel  against  himself. 

5Vere  v.  Lewis,  3  T.  R.  182. 

6  In  Bennett  v.  Farnell,  1  Campb.  130,  Lord  Ellenborough  held  such 
a  bill  to  be  void  and  not  equivalent  to  a  bill  payable  to  bearer.  He,  how- 
ever, permitted  a  recovery  by  the  holder  of  the  consideration  actually  paid 
as  money  had  and  received.     See,  however,  1  Campb.  180c. 

'Phillips  v.  Im.  Thurn,  18  C.  B.  (n.  s.)  694  (1865) ;  S.  C,  L.  R.  1  C.  P.  463. 
See,  too,  Ort  v.  Fowler,  31  Kans.  478  (1881),  where  the  maker  of  a  note  was 
held  on  like  ground  of  estoppel,  although  ignorant  that  the  note  was  made- 
to  a  fictitio.us  firm. 


PAYEE    MISNAMED.  251 

upon  it  at  suit  of  a  bona  fide  holder,  although  he  had  no 
knowledge  of  the  fiction  employed.1 

§  165.  Payee  Misnamed — Correction  by  Parol  Evidence. — 
It  frequently  occurs  that  the  name  of  the  payee  in  a  com- 
mercial instrument  is  erroneously  stated  by  mistake.  Such 
misnomer  is  immaterial  where  no  doubt  is  left  as  to  the  iden- 
tity of  the  person  intended.2  In  case  of  such  mistake,  as 
also  in  case  of  ambiguity  arising  from  the  existence  of  sev- 
eral persons  of  the  same  name,  parol  evidence  is  admissible 
to  explain  the  intention  of  the  parties.3  And  it  follows, 
from  what  has  been  said,  that  the  mere  misspelling  in  the 
indorsement  of  the  payee's  name  is  also  immaterial.4 

The  following  are  instances  of  immaterial  mistake  in  the 
payee's  name,  corrected  by  parol  evidence  of  intention : 
"  W.  S.  Bake"  for  "W.  S.  Baker;"5  "W.  K  &  P.  Kesor" 
for  "W.  &  B.  P.  Besor;"6  "Elizabeth  Willis"  for  "Eliza- 
beth Willison."7  Again,  where  a  note  was  made  to  E.  H. 
and  secured  by  mortgage  to  E.  H.  3d,  parol  evidence  was 
admitted  to  show  that  a  firm  consisting  of  E.  H.  and  E.  H. 
3d,  and  doing  business  in  the  individual  name  of  E.  H.,  was 
intended.8  And  where  the  payee  has  been  wrongly  named  in  a 
note  or  bill,  the  holder  may  show  that  he  was  himself  intended 
as  payee  and  that  the  paper  was  delivered  to  him  as  such.9 

xLane  v.  Krekle,  22  Iowa  399  (1867).  And  the  same  is  true  as  to  the  lia- 
bility of  the  drawer  of  a  bill  of  exchange  under  similar  circumstances, 
Kohn  v.  Watkins,  26  Kans.  691  (1881). 

2 Rex  v.  Box,  6  Taunt.  325.  But  a  note  payable,  by  mistake,  to  Joseph  R. 
and  delivered  to  Jobn  R.,  cannot  be  transferred  by  the  latter's  indorsement, 
although  he  was  the  person  intended,  both  being  persons  in  esse,  Bolles  v. 
Stearns,  11  Cush.  320  (1853). 

"Chitty  180;  Willis  v.  Barrett,  2  Stark.  29;  Mead  v.  Young,  4  T.  R.  28; 
Midway  Cotton  Mfg.  Co.  v.  Adams,  10  Mass.  360  (1813) ;  Jester  v.  Hopper, 
13  Ark.  43  (1853);  Taylor  v.  Strickland,  37  Ala.  642  (1861);  Leaphardt 
v.  Sloan,  5  Blackf.  278  (1840). 

♦Colson  v.  Arnot,  57  N.  Y.  253  (1874). 

6  Williams  v.  Baker,  67  111.  238  (1873).  So,  "A.  Formey  "  for  "A.  Formby,'' 
Taylor  v.  Strickland,  37  Ala.  642  (1861). 

6 Patterson  v.  Graves,  5  Blackf.  593  (1841). 

'Willis  v.  Barrett,  2  Stark.  29  (1816).  Or,  "  Charles  V.  Jacobs  "  instead  of 
"  Charles  B.  Jaques,"  Jacobs  v.  Benson,  39  Me.  132  (1855). 

"Hall  v.  Tufts,  18  Pick.  455  (1836). 

•Jester  v.  Hopper,  13  Ark.  43  (1853) ;  Patterson  v.  Graves,  5  Blackf.  593 
(1841) ;   Hall  v.  Tufts,  18  Pick.  455  (1836). 


252  FORM THE    PARTIES    DESIGNATED. 

So,  where  a  sealed  bond  was  made  to  the  Standing  Com- 
mittee of  the  New  York  African  Society,  the  corporation 
was  allowed  to  show  itself  intended  as  obligee  and  to  main- 
tain an  action  as  such  on  the  bond.1  And  where  a  cor- 
poration named  as  payee  has  changed  its  name,  e.  g.  from 
"  Sonoma  Academy "  to  "  Cumberland  College,"  it  may 
maintain  an  action  in  its  new  name  on  a  note  given  to  it  by 
its  old  name  on  mere  proof  of  identity.2 

§  1 66.  Name  Common  to  Several  Persons. — Where  a  father 
and  son  bear  the  same  name,  there  is  a  presumption,  it  is 
said,  that  the  father  was  intended  in  a  note  payable  to  the 
name  borne  by  both,  unless  the  contrary  appear.3  Posses- 
sion and  indorsement  by  the  son  will  be  deemed  sufficient, 
however,  to  rebut  this  presumption.4 

Although,  as  we  have  seen,  a  mere  mistake  of  name  is 
immaterial  and  capable  of  correction  by  parol  evidence,  a 
note  made  to  a  payee  by  a  wrong  name  actually  borne  by 
another  existing  person,  cannot  be  indorsed  by  the  payee 
who  was  intended  but  not  named,  e.  g.  John  P.  Reed  being 
the  payee  named,  and  Joseph  P.  Reed  assuming  himself  to 
be  the  payee  intended  and  indorsing  the  note  as  such.5 
And,  in  Illinois,  it  is  not  even  admissible  to  prove  a  note 
made  payable  to  "  Bart.  Whalen  "  under  a  declaration  set- 
ting forth  a  note  to  "Bartholomew  Whalen."6  Where  a 
person  of  the  same  name  as  the  payee,  not  being  the  person 
intended  in  the  instrument,  obtains  possession  of  it  and  in- 
dorses it,  his  indorsement  is  a  forgery  and  does  not  effect  a 
transfer  of  the  paper.7  In  a  case  of  this  sort,  where  a  note 
was  made  payable,  by  mistake,  to  the  order  of  H.  L.  C,  in- 

*New  York  African  Soc.  v.  Varick,  13  Johns.  38  (1816). 

Cumberland  College  v.  Ish,  22  Cal.  640  (1863). 

3 Sweeting  v.  Fowler,  1  Stark.  106;  Wilson  v.  Stubs,  Hob.  330;  Stebbing  v. 
Spicer,  8  C.  B.  827  (1849). 

4  Stebbing  v.  Spicer,  8  C.  B.  827  (1849). 

5Bolles  v.  Stearns,  11  Cush.  320  (1853). 

6 Rives  v.  Marrs,  25  111.  315  (1861).  And  a  judgment  against  "  Barent  H." 
will  not  support  a  declaration  against  "  Barnard  H.,"  Ducommun  v.  Hysin- 
ger,  14  111.  249  (1852). 

7  Byles  83  ;  Mead  v.  Young,  4  T.  R.  28. 


PAYEE BLANK.  253- 

stead  of  L.  L.  C,  and  was  delivered  to  the  right  per- 
son, L.  L.  C,  and  by  him  transferred  to  the  plaintiff  for 
valuable  consideration,  but  was  actually  paid  to  H.  L. 
C,  who  knew  of  the  mistake  and  availed  himself  of  it,  H.. 
L.  C.  was  held  liable  to  the  plaintiff  in  an  action  for  money 
received.1 

§  167.  Payee — Blank. — The  payee's  name,  like  other  parts 
of  a  bill  or  note,  may  be  left  blank  at  the  time  when  the 
paper  is  issued.  Where  this  happens,  the  bill  or  note  is  in 
legal  effect  payable  to  bearer.2  Such  blank  may  be  filled  up 
by  a  bona  fide  holder  for  value  with  his  own  name  and  sued 
upon  by  him  as  if  originally  payable  to  him.3  And  it  may 
be  filled  in  this  manner  at  any  time  before  trial 4  It  has 
been  held  in  Illinois  that  a  due-bill  reading  "good  for  fifty 
cents"  may  be  completed  by  the  holder  by  adding  the  words 
"to  myself  or  order,"  and  that  filling  such  blank  at  all  is 
wholly  unnecessary  to  make  the  instrument  a  promissory 
note.5  This  case  seems  to  conflict  with  the  rule  restricting 
the  authority  to  fill  blanks  to  cases  in  which  a  blauk  has 
been  plainly  and  intentionally  left  by  the  maker. 

Sometimes  the  intention  of  the  maker,  as  to  a  blank,  may 
be  explained   by  a  contemporaneous  instrument  construed 

'Camp  v.  Tompkins,  9  Conn.  545  (1833). 

»1  Daniel  151 ;  Cruchlev  v.  Clarence,  2  M.  &  S.  91  (1813) ;  Wookey  v.  Pole,. 
4  B  &  Aid.  6;  Wood  v.  Wellington,  30  N.  Y.  218  (1864) ;  Dinsmore  v.  Dun- 
can. 57  lb   573  (1874). 

3Byles  85  ;  Chitty  162,  179;  1  Daniel  151  ;  1  Edwards  \  141  ;  1  Parsons  33, 
Story  on  Bills  I  55;  Story  on  Prom.  Notes  I  37;  Cruchlev  v.  Clarence,  2  M. 
&S  90;  Crutehley  v.  Mann,  1  Marsh.  31,  5  Taunt.  529;  Powell  v.  Duff,  3 
Campb.  182;  Usher  v.  Dauncey.  4  lb.  97 ;  Atwood  v.  Griffin,  Ky.  &  Mood.  42, 
425;  Dinsmore  v.  Duncan,  57  N".  Y.  573  (1874) ;  Hardy  v.  Newton,  66  Barb. 
527  (1873) ;  Stahl  v  Berger,  10  Serg.  &  R.  170  (1823) ;  Bank  of  Kentucky  v. 
Garey,  6  B.  Mon.  626  (1846) ;  Greenhow  v.  Boyle.  7  Blackf  56  (1843) ;  Boyd 
v.  McCann,  10  Md.  118  (1856);  Sittig  v.  Birkstack,  38  lb.  158  (1873)  ;  Dun- 
ham v.  Cloge,  30  76.  284  (1868);  Weston  v.  Myers,  33  III.  424  (1864);  Seay 
v.  Bank  of  Tennessee.  3  Sneed  558  (1856);  Schooler  v.  Tilden,  71  Mo.  58(> 
(1880);  Aiken  v.  Cathcart,  3  Rich  133;  Witte  v.  Williams,  8  So.  Car.  290 
(1876);  Rich  v.  Starbuck,  51  Ind.  87  (1875)  ;  Van  Etta  v.  Evenson,  28  Wis. 
33  (1871) ;  Brummel  v.  Enders.  IS  Gratt.  873  (1868) ;  Farmers',  &c.,  Bank  v. 
Horsey,  2  Houst.  385  (1861) ;  Townsend  v.  France,  lb.  441  (1862).  Or  if  in- 
dorsed by  the  original  pavee  the  blank  may  be  filled  with  his  name,  Elliott 
v.  Chesnut,  30  Md.  562  (1869). 

♦Schooler  v.  Tilden,  71  Mo.  580  (1880). 

'Weston  v.  Myers,  38111.  424  (1864). 


254  FOKM THE    PARTIES    DESIGNATED. 

with  the  note  or  bill.  This  occurs  in  the  case  of  a  note 
payable  to  "A.  or ,"  and  explained  by  a  collateral  mort- 
gage as  intending  the  bearer,  and  the  assignee  of  the  mort- 
gage as  such  bearer  may  maintain  an  action  on  the  note.1 
A  blank  indorsement,  like  the  blank  for  payee  in  the  body 
of  the  instrument,  may  be  filled  out  by  a  bona  fide  holder 
with  his  own  name.2  But  it  has  been  held  that,  to  render 
an  acceptor  liable  upon  a  bill  of  exchange  issued  with  a 
blank  for  the  payee's  name,  the  holder  must  prove  his 
authority  from  the  drawer  to  fill  such  blank  with  his  own 
name.3 

Where  the  payee's  name  is  left  blank,  the  instrument 
remains  incomplete,  and  it  is  said  not  to  be  a  bill  of  ex- 
change until  such  blank  is  filled.4  If,  however,  a  draft  is 
signed  and  is  also  indorsed  by  the  drawer,  it  is  sufficient  and 

complete  although  made  payable  "  to  the  order  of ," 

and  the  blank  not  filled.5     So,  if  a  note  is  made  payable  "  to 

or  bearer,"  the  holder  may  sue  upon  it  without  filling 

up  the  blank,  alleging  and  proving  that  the  note  was  deliv- 
ered to  him  by  the  maker  and  that  he  is  the  bona  fide 
holder  and  owner  of  it.6 

§  168.  It  has  been  held,  in  England,  that  an  instrument 

in  the  form  of  a  bill  of  exchange  made  payable  "  to or 

order,"  being  incomplete  and  therefore  no  bill  of  exchange, 
cannot  be  the  subject  of  a  forgery.7  But  the  contrary  doc- 
trine has  been  held  in  a  recent  case  in  Indiana.8 

Whether  a  blank  of  this  character  left  in  a  sealed  bond 

1  Elliott  v.  Deason,  64  Ga.  63  (1879). 

2 Hubbard  v.  Williamson,  4  Ired.  266;  Wilder  v.  De  Wolf,  24  111.  190 
(3860). 

3Crutcbley  v.  Mann,  1  Marsh.  31,  5  Taunt.  529;  Atwood  v.  Griffin,  Ry.  & 
Mood.  425;  2  Carr.  &  P.  368;  Awde  v.  Dixon,  6  Exch.  869. 

*Greenhow  v.  Boyle,  7  Blackf.  56  (1843). 

5Usry  v.  Saulsbury,  62  Ga.  179  (1879). 

6  Rich  v.  Starbuck,  51  Ind.  90  (1875).  See,  too,  Wood  v.  Wellington,  30 
N.  Y.  218  (1864) ;  Weston  v.  Myers,  33  111.  424  (1864). 

7 Rex  v.  Richards,  Russ.  &  Ry.  C.  C.  193;  Rex  v.  Randall,  lb.  195  (1811). 
See,  too,  2  Leach  C.  C.  597 ;  2  East  933. 

8Harding  v.  The  State,  54  Ind.  359  (1826). 


payee's  name.  255 

<jan  be  filled  by  the  holder,  is  a  question  upon  which  there 
is  a  wide  disagreement  among  numerous  authorities.1  It  has 
been  held  that  a  bond  under  seal  payable  to  a  railroad  com- 
pany "or  its  assigns,"  is  not  negotiable  and  cannot  be  trans- 
ferred  by   an    assignment   "to  or  bearer."2     And  it 

seems  that  a  blank  left  for  payee's  name  in  a  non-negotiable 
sealed  bond  cannot  be  filled  by  the  holder.3 

The  implied  authority  to  fill  a  blank  left  for  the  payee's 
name  extends  to  a  surety  who  has  executed  a  note  and 
left  it  with  such  a  blank  in  the  hands  of  his  principal.4 
Such  implied  authority  is  given  by  the  maker  of  a  note 
to  a  co-maker,  for  whose  accommodation  he  has  executed 
the  note,  notwithstanding  an  agreement  between  the  makers 
that  the  blank  should  be  filled  out  with  some  particular 
name  only ;  and  a  bona  fide  holder,  without  notice  of  such 
agreement,  may  recover  against  both  makers  upon  a  note 
which  has  been  filled  up  in  contravention  of  the  agree- 
ment.6 But  where  a  note  has  been  filled  up  with  the  name 
of  A.  and  delivered  to  him  by  the  maker,  in  disregard  of 
an  agreement  between  the  maker  and  an  indorser  (who  in- 
dorsed the  note  as  guarantor  before  delivery)  to  the  effect 
that  a  particular  name  other  than  A.'s  should  be  inserted  as 
payee,  A.  cannot  recover  against  such  indorser  although  he 
has  taken  the  note  for  value  and  without  notice  of  such 
agreement.6 

§  169.  Payee's  Name — English  and  American  Statutes. — 
In  many  of  the  United  States  some  provision  is  made  by 
statute  as  to  the  name  of  the  payee  in  commercial  paper.7 

:To  the  effect  that  such  blank  can  be  filled,  see  Gourdin  v.  Commander 
6  Rich.  497  (1852).  For  other  cases  as  to  blanks  left  to  be  filled  in  sealed 
bonds,  see  Chapter  VI. 

'Clarke  v.  City  of  Zanesville,  1  Biss.  C.  C.  98  (1856) 

3Barden  v.  Southerland,  70  N.  C.  528. 

♦Armstrong  v.  Harshman,  61  Ind.  52  (1878) ;  S.  C,  43  lb.  126. 

5  Wilson  v.  Kinsey,  49  Ind.  35  (1S74). 

'Riddle  v.  Stevens,  32  Conn.  346  (1865). 

7 In  California  "the  person  to  whose  order  a  negotiable  instrument  ia 
made  payable  must  he.  ascertainable  at  the  time  the  instrument  is  made" 
(Civ.  Code  of  1S7-J  ii-fciiiS'.),.     Su,-h  instriimont,  "payable  to  a  person  named, 


256  FORM THE    PARTIES    DESIGNATED. 

In  England  the  Statute  of  17  Geo.  III.  c.  30  required  bills,, 
and  all  other  negotiable  instruments  under  £5,  to  express 
the  names  and  respective  places  of  abode  of  the  persons  to< 

but  with  the  words  added  '  or  to  his  order,'  or  '  to  bearer,'  or  words  equiv- 
alent thereto,  is  in  the  former  case  payable  to  the  written  order  of  .such 
person  and  in  the  latter  case  payable  to  the  bearer"  (lb.  8101).  Such  in- 
strument "payable  to  the  order  of  the  maker  or  of  a  fictitious  person,  if 
issued  by  the  maker  for  a  valid  consideration  without  indorsement,  has  the 
same  effect  against  him  and  all  other  persons  having  notice  of  the  facts  as 
if  payable  to  bearer"  (lb.  j}  8102),  and  "if  made  payable  to  the  order  of  a 
person  obviously  fictitious,  is  payable  to  the  bearer"  {lb.  8103).  In  Colorado- 
such  instruments  as  are  included  in  the  Statute  of  Anne  there  enacted  re- 
quire a  payee  (1877  G.  L.  p.  110  \  9<>).  So,  in"  Connecticut  (Gen.  St.  Rev. 
1>675  p.  343  §  1).  In  Dakota  the  same  provisions  have  been  enacted  as  in 
California  (Rev.  Code  1877  ||  1823,  1832-1834),  In  Georgia  a  promissory 
note  is  defined  by  statute  to  be  a  "written  promise  made  by  one  or  more  to- 
pay  to  another,  or  order,  or  bearer,"  &c.  (Code  1873  \  2774).  Notes  payable 
to  bearer  are  transferable  by  delivery  (76.  §  2775).  In  Idaho  notes  to  any 
person,  order  or  bearer  are  made  negotiable  (Rev.  L.  1875  p.  652  §  1).  If 
made  payable  "  to  the  maker  thereof  or  to  the  order  of  a  fictitious  person  " 
and  negotiated  by  the  maker,  they  are  equivalent  to  notes  payable  to  bearer 
as  against  the  maker  and  all  persons  having  knowledge  of  tbe  facts  (lb.  g  5). 
In  Illinois  notes  payable  to  bearer  are  transferable  by  delivery,  and  the  in- 
dorser  is  in  such  case  liable  as  guarantor  (1880  R.  S.  c.  98  \  8).  Notes 
"  payable  to  any  person  therein  named  as  payee  "  are  assignable  by  indorse- 
ment so  that  the  assignee  may  sue  in  his  own  name,  and  the  assignor  is 
liable  if  the  assignee  use  due  diligence  (lb.  §§4-7).  In  Kansas  bonds,  notes 
and  bills  "  payable  to  any  person  or  order,  or  to  any  person  or  bearer,  shall 
be  negotiable  by  indorsement  thereon  if  payable  to  order,  and  by  delivery 
if  payable  to  bearer"  (1879  Comp.  L.  c.  14  \  1).  In  Kentucky  a  promissory 
note  made  by  the  maker  payable  to  himself  or  order  and  indorsed  by  him 
is  binding  on  him  (1877  G.  S.  c.  22  \  13).  In  Michigan  negotiable  notes  may 
be  payable  "  to  any  other  person  or  to  his  order,  or  to  the  order  of  any 
other  person,  or  unto  the  bearer  "  (1  Comp.  L.  1871  p.  515  g  1),  and  if  made 
to  the  order  of  the  maker  or  of  a  fictitious  person,  and  negotiated  by  the 
maker,  such  note  has  the  effect  of  a  note  payable  to  the  bearer  as  against 
the  maker  and  all  persons  having  knowledge  of  the  facts  (lb  \  4).  In  Min- 
nesota a  note  payable  to  the  order  of  the  maker  or  of  a  fictitious  person,  and 
negotiated  by  the  maker,  is  by  statute  made  equivalent  to  a  note  payable  to 
bearer  as  against  the  maker  and  all  persons  having  knowledge  of  the  facts 
(1878  G.  S.  c.  23  \  16).  In  Missouri  negotiable  notes  may  be  made  payable 
to  bearer  (1  R.  S.  1879  c.  10  §  547)  or  order,  or  to  a  payee  therein  named. 
If  made  payable  to  the  order  of  the  maker  or  of  a  fictitious  person,  and 
negotiated  by  the  maker,  they  are  equivalent  to  notes  payable  to  bearer  as 
against  the  maker  and  all  persons  having  knowledge  of  the  facts  (1  R.  S. 
1879  c.  10  I  549;  1877  P.  L.  p.  36).  In  Nebraska  negotiable  instruments 
must  be  made  payable  "  to  a  person  or  order,  or  a  person  or  assigns  "  (1873 
G.  S.  c.  32  \  1 ;  1866  R.  S.  c.  27).  In  Nevada  all  negotiable  notes  must  be  to 
another  person  than  the  maker  or  his  order,  or  to  the  order  of  such  person 
or  to  bearer  (1  Comp.  L.  1873  c.  5  §  9;  1861  P.  L.  p.  4).  If  made  payable 
to  the  order  of  the  maker,  or  of  a  fictitious  person,  and  negotiated  by  the 
maker,  they  are  equivalent  to  notes  payable  to  bearer  as  against  the  maker 
and  all  persons  having  knowledge  of  the  facts  (lb.)  But  see  Wayman  v. 
Toneyson,  4  Nev.  124  (1868).  In  New  Jersey  negotiable  notes  under  the 
statute  must  be  payable  to  another  person  than  the  maker,  or  order,  or 
unto  bearer  (Act  of  1795  Pat.  Rev.  p.  342  I  4;  1874  Rev.  p.  897  \  1).  So.  in 
New  York  (2  R.  S.,  ed.  1875,  p.  1160  §  1 ;  1  R.  L.  1801  p.  151).  The  New 
York  Revised  Statutes  contain  a  further  provision  similar  to  that  in  Nevada, 


FOREIGN    STATUTES.  257 

whom  or  to  whose  order  the  same  should  be  payable.  This 
Act  was  made  perpetual  by  the  Statute  of  27  Geo.  III.  c.  16 
and  is  still  iu  force.1 

§  170.  Foreign  Statutes. — By  foreign  statutes  the  payee's 
name  is  generally  made  a  necessary  part  of  every  bill  of  ex- 
change, promissory  note  or  other  commercial  instrument.2 
And  in  some  foreign  countries,  chiefly  those  governed  by 
Spanish  law,  the  payee's  full  name  is  required.3  In  France 
and  the  other  countries  governed  by  the  Code  Napoleon  a 
bill  of  exchange  must  be  payable  to  the  order  either  of  the 
drawer  or  of  a  third  person.4 

In  Spain  and  the  Spanish  American  States  it  is  also  neces- 
sary to  a  good  indorsement  of  commercial  paper  that  the 
indorsee's  name  should  be  expressed,  and  if  this  is  not  done 

supra  (2  R.  S.  p.  1160  §  5).  In  Ohio  negotiable  instruments  mast  be  payable 
to  "  a  person  or  order,  or  a  person,  or  assigns  "  (1880  R.  S.  $  3171 ;  1830  P.  L. 
p.  217  \  1).  In  Oregon  there  are  the  same  statutory  provisions  on  this  sub- 
ject as  in  New  York  (1872  G.  L.  c.  48  \\  1,  4).  In  Rhode  Island  negotiable 
notes  may  be  payable  to  "  bearer  "  (1872  6.  S.  c.  129  I  6).  In  South  Carolina 
only  notes  payable  "to  another  person  (than  the  maker)  or  corporation,  or 
their  order,  or  unto  bearer,"  are  made  negotiable  (1873  R.  S.  p.  319  §  8). 
So,  in  Tennessee,  "to  any  other  person  or  order,  or  to  the  order  of  any  other 
person  "  (1871  C.  S.  \  1956 ;  1762  P.  L.  c.  9  \  2).  In  Vermont  notes  and  bills 
may  be  made  payable  to  any  person,  or  order,  or  bearer  (1862  G.  S.,  ed.  1870, 
p.  508  g  5).  In  Wisconsin  notes  made  to  the  order  of  the  maker,  or  of  a  ficti- 
tious person,  and  negotiated  by  the  maker,  have  the  effect  of  notes  payable  to 
bearer  as  against  the  maker  and  all  persons  with  notice  (1878  R.  S.  \  1679). 
xChitty  180.  And  see  7  Geo.  IV.  c.  6.  And  it  seems  that,  in  England, 
such  instruments  if  made  payable  to  bearer  are  neither  negotiable  nor 
transferable,  Chitty  188  note  m;  Quarterman  v.  Green,  1  C.  &  P.  92;  Hill  v. 
Lewis,  1  Salk.  132. 

^Argentine  Republic  (1862  Code  Com.  Arts.  776,  916);  Bolivia  (1834  Code 
Com.  Arts.  362,  463,  469) ;  Brazil,  (1850  Code  Com.  Arts.  354,  427)  ;  Germany 
(1848  Exch.  Law  Art.  4);  Austria  (1850  Exch.  Law  Art,  4)  ;  Holland  (1838 
Exch.  Law  Arts.  101,  208,  210) ;  Hungary  (1860  Exch.  Law  ch.  1  \  14)  ;  Italy 
(1865  Code  Com.  Arts.  196,  273) ;  Nicaragua  (1869  Code  Com.  Arts.  241,  312, 
316);  Guatemala,  Honduras  and  Paraquay  (1774  Ordc.  Bilbao  c.  13  §  2;  ch. 
14  §1)  ;  Peru  (1853  Code  Com.  Art.  381);  Portugal  (1833  Code  Com.  Arts. 
321,  426) ;  Sweden  and  Norway  (1851  Exch.  Law  ch.  1  §  1) ;  Switzerland  (1805 
Zurich  2  1;  1863  Basle  <j  3;  1859  Berne  \  3) ;  Uruguay  (1865  Code  Com.  Art. 
789) ;   Venezuela  (1862  Code  Com.  Art.  1 ;  Law  II.  Art.  1). 

3  Chili  (1865  Code  Com.  Arts.  633,  771);  Colombia  (1853  Code  Com.  Arts. 
384,  517);  Costa  Rica  (1853  Code  Com.  Arts.  373,  510);  Ecuador  (same  as 
Spain) ;  Mexico  (1854  Code  Com.  Arts.  223) ;  Peru  (1853  Code  Com.  Art.  522, 
as  to  notes) ;  Russia  (1832  Exch.  Law  Art.  541) ;  Salvador  (1855  Code  Com. 
Art.  381) ;  Spain  (1829  Code  Com.  Arts.  426,  563). 

'France  (1807  Code  Napoleon  Art.  110;  Bedarride  Droit  Com.  vol.  1  p.  139). 
The  Code  Napoleon  governs  also  Belgium,  Greece,  the  Canton  of  Geneva  and 
Turkey. 

R 


258  FORM THE    PARTIES    DESIGNATED. 

the  indorsement  is  void.1  The  indorsee's  name  is  also  re- 
quired in  France  and  in  some  other  countries,  and  its  omis- 
sion renders  the  indorsement  a  mere  power  of  attorney  to 
collect  payment  for  the  indorser.2  In  some  of  the  States  of 
South  America,  while  the  indorsee's  name  is  necessary  to  a 
complete  indorsement,  an  indorsement  in  blank  is  neverthe- 
less available,  and  is  equivalent  to  an  indorsement  to  the 
order  of  the  bearer.3  Other  foreign  statutes,  while  prescrib- 
ing that  a  proper  indorsement  shall  name  the  indorsee,  pro- 
vide that  an  indorsement  in  blank  shall  carry  with  it  power 
to  the  indorsee  to  fill  the  blank.4  And  in  Russia  this  is  the 
case  even  after  acceptance  of  the  bill.5 

By  most  foreign  statutes  it  is  provided  that  a  bill  or  note 
may  be  made  payable  to  the  drawer  or  maker.6  But  in  Ger- 
many if  a  bill  or  note  is  made  payable  in  this  way  and  in- 
dorsed in  blank,  it  is  said  to  be  invalid.7 

And  a  bill  or  note  cannot  be  made  payable  to  bearer  in 
Germany.8      And   formerly  such    bills   were   forbidden   in 

^Bolivia  (1834  Code  Com.  Arts.  381,  383) ;  Colombia  (1853  Code  Com.  Art. 
426);  Costa  Mica  (1853  Code  Com.  Art.  416);  Ecuador  (same  as  Spain); 
Mexico  (1854  Code  Com.  Arts.  360,  362);  Nicaragua  (1869  Code  Com.  Art. 
261);  Guatemala,  Honduras  and  Paraguay  (1774  Ordc.  Bilbao  ch.  13  \  3) ; 
Salvador  (1855  Code  Com.  Art.  423) ;  Spain  (1820  Code  Com.  Art.  469). 

^France  (Code  Napoleon  Arts.  137,  138).  This  law  governs  Belgium, 
Geneva,  Greece,  Hayti,  San  Domingo  and  Turkey.  So,  too,  in  Hunga.ry  (1860 
Exch.  Law  ft  30.  3*4)  ;  Italy  (I860" Code  Com.  Art.  223) ;  Portugal  (1833  Code 
Com.  Arts.  355,  357) ;   Venezuela  (1862  Code  Com   Arts.  34,  36). 

3 Argentine  Republic  (1862  Code  Com.  Arts.  803,  805);  Brazil  (1850  Code 
Com.  Arts.  361,  362) ;   Uruguay  (1865  Code  Com.  Arts.  822,  823). 

'Chili  (1865  Code  Com.  Arts.  658,  661);  Sweden  and  Norway  (1851  Exch. 
Law  eh.  1  §  12) ;  Switzerland  (1863  Basle  g  12;  1859  Berne  g  12). 

"Russia  (1832  Exch.  Law  Arts.  559,  562). 

^France  (1807  Code  Napoleon  Art.  110  ;  Bedarride  Droit  Com.  vol.  1  p.  136). 
This  provision  of  the  Code  Napoleon  is  in  force  also  in  Belgium,  Geneva, 
Greece,  Hayti,  San  Domingo  and  Turkey.  The  statute  makes  like  provision 
in  Bolivia  (1834  Code  Com.  Art.  353):  Chili  (1865  Code  Com.  Art.  639); 
Colombia  (1853  Code  Com.  Art.  388) ;  Costa  Rica  (1S53  Code  Com.  Art.  377)  ; 
Denmark  (1825  Exch.  Law  g  5) ;  Germany  (1S48  Exch.  Law  Art.  6);  Austria 
(1850  Exch.  Law  Art.  6);  Holland  (1838  Exch.  Law  Art.  101);  Ecuador 
(same  as  Spain) ;  Italy  (1865  Code  Com.  Art.  196)  ;  Mexico  (1854  Code  Com. 
Art.  325);  Peru  (1853  Code  Com.  Art.  387;;  Portugal  (1833  Code  Com.  Art. 
322) ;  Lower  Canada  (1867  Civil  Code  U  2282,  2346) ;  Russia  (1832  Exch.  Law 
Art.  541) ;  Salvador  (1S55  Code  Com.  Art.  385) ;  Spain  (1829  Code  Com.  Art. 
430) ;  Sweden  and  Norivay  (1851  Exch.  Law  ch.  1  g  2) ;  Switzerland  (1863  Basle 
I  6;  1859  Berne  g  6) ;  Venezuela  (1862  Code  Com.  Art.  2). 

7Thol  W.  R.  151. 

•Thol  W.  R.  150. 


FOREIGN    STATUTES.  259 

France ;  but  it  is  said  by  Mr.  Chitty  that  they  are  now 
allowed.1  In  Brazil  a  note  made  by  a  merchant  payable  to 
bearer  has  the  same  force  as  a  "Provincial  Bill"  and  does 
not  require  protest.2  In  the  Argentine  Republic,  notes,  due- 
bills  and  orders  may  be  made  payable  to  bearer  and  pass  by 
delivery.3  So,  too,  in  Lower  Canada;4  and,  as  to  promissory 
notes,  in  Uruguay;5  and,  as  to  bills  of  exchange,  in  Den- 
mark;6 while  in  Mexico  and  Salvador  both  notes  and  cer- 
tificates of  deposit  made  payable  to  bearer  are  void.7 

Leaving  a  blank  for  the  payee's  name  renders  a  bill  invalid 
in  Germany.8  But  such  blank  is  permitted  and  may  be  filled 
by  a  bona  fide  holder,  as  at  common  law,  in  some  of  the 
South  American  States.9 

'Chitty  180;  Decrees  of  June  7th,  1611,  and  March  1624.  See  Pothier  pi. 
221  ;  Chitty  180,  and  1  Pardess.  358,  as  to  later  law.  The  Code  Napoleon 
(Art.  110)  contemplates  the  payee  being  named  in  a  bill  of  exchange  and 
provides,  as  we  have  already  seen,  only  for  bills  payable  to  "  the  order  of  a 
third  person  or  of  the  drawer  himself." 

'Brazil  (1850  Code  Com.  Art.  426). 
"Argentine  Republic  (1862  Code  Com.  Art.  916). 
*Lower  Canada  (1867  Civil  Code  \\  2282,  2344). 
^Uruguay  (1865  Code  Com.  Art.  933). 
^Denmark  (1825  Exch.  Law  g  6). 

1 Mexico  (1854  Code  Com.  Art.  452) ;  Salvador  (1855  Code  Com.  Art.  516). 
8Thol  W.  R.  150. 

'Argentine  Republic  (1862  Code  Com.  Art.  776) ;  Uruguay  (1865  Code  Com. 
Art.  789). 


260  FORM THE   PARTIES    DESIGNATED. 


III.    THE    DRAWEE. 

171.  Drawee's  Name — In  General. 

172.  Drawee's  Name  Identical  with  Drawer  or  Payee. 

§  171.  Drawee's  Name — In  General. — From  the  nature  of 
a  bill  of  exchange  it  follows  that  the  person  upon  whom  it  is 
drawn,  and  who  is  expected  to  pay  it,  should  appear  in  the 
instrument.  This  is  usually  effected  by  a  direction  to  the 
drawee  by  name,  e.  g.  "  To  A.  B.,"  with  or  without  his  ad- 
dress on  the  face  of  the  bill  at  the  top  or  bottom.1  The  lat- 
ter is,  however,  the  more  common.  In  Italy  and  HoWand 
the  direction  to  the  drawee  is  often  placed  on  the  back  of  the 
bill.  It  is  a  general  rule  of  the  common  law  that  the 
drawee's  name  should  appear  on  the  bill.2  But  the  omission 
of  it  may  be  supplied  by  an  acceptance,  this  being  construed 
to  amount  either  to  an  admission  or  waiver  of  a  more  formal 
address.3  It  is  also  generally  required  by  foreign  statutes 
that  the  drawee's  name  should  appear.4  In  Italy  and  in 
Chili  the  drawee's  full  name  is  requisite;5  and  in  the  Span- 

*But  if  a  bill  is  directed  to  no  one,  but  signed  across  its  face  by  A.,  and 
in  tbe  position  usual  for  the  drawee's  name  by  B.,  the  latter  is  prima  facie 
the  drawee  and  the  former  an  indorser,  guarantor  or  acceptor  supra  protest, 
as  may  be  determined  by  parol  evidence,  and  such  evidence  is  admissible 
against  the  payee,  Walton  v.  Williams,  44  Ala.  347  (1870). 

2  Byles  89 ;  Chitty  188 ;  1  Daniel  106 ;  1  Edwards  \  209  ;  1  Parsons  61 ;  Peto 
v.  Reynolds,  9  Exch.  410 ;  S.  C,  11  lb.  418 ;  Watrous  v.  Holbrook,  39  Tex.  572 
(1873). 

3Byles  89;  Chitty  188;  Storv  on  Bills  §  58;  Gray  v.  Milner,  8  Taunt. 
739  (1819) ;  S.  C,  3  Moore  90;  Watrous  v.  Holbrook,  supra.  "The  accept- 
ance," says  Ingraham,  J.,  "may  be  considered  as  supplying  the  defect 
and  as  being  an  admission  by  the  acceptor  that  he  is  the  person  intended. 
At  any  rate,  it  does  not  lie  with  him  to  make  such  defense  after  having 
admitted  by  the  acceptance  that  he  was  the  person  intended  and  after 
having  promised  to  pay  the  draft  at  maturity.  He  is  estopped  by  his  own 
act  from  such  a  defense,"  Wheeler  v.  Webster,  1  E.  D.  Smith  3  (1850). 

*  Argentine  Republic  (1862  Code  Com.  Art.  776) ;  Belgium  (Code  Napoleon  Art. 
110) ;  Bolivia  (1834  Code  Com.  Arts.  362,  463) ;  Brazil  (1850  Code  Com.  Arts. 
354,  427) ;  Germany  (1848  Exch.  Law  Art.  4) ;  Austria  (1850  Exch.  Law  Art. 
4);  Holland  (1838  Exch.  Law  Art.  100);  Hungary  (1860  Exch.  Law  ch.  1 
§  14);  Nicaragua  (1869  Code  Com.  Art.  241);  Peru  (1853  Code  Com.  Art. 
381) ;  Portugal  (1833  Code  Com.  Art.  321) ;  Sioeden  and  Norway  (1851  Exch. 
Law  ch.  1  §  1) ;  Uruguay  (1865  Code  Com.  Art.  789) ;  Venezuela  (1S62  Code 
Com.  Art.  1). 

6 Chili  (1865  Code  Com.  Art.  633) ;  Italy  (1865  Code  Com.  Art.  196). 


drawee's  name.  261 

ish-American  States  and  some  others  his  name  and  residence 
must  both  appear  on  the  bill.1 

At  common  law  the  name  of  the  drawee  is  not  necessary 
if  he  be  otherwise  sufficiently  designated.  This  is  the  case 
in  a  bill  addressed  to  the  "Steamer  Dorrance  and  owners,"2 
or  to  "  the  agent  and  owners  of"  a  certain  ship.3  Moreover, 
a  bill  of  exchange  may  be  directed  to  a  person  in  a  repre- 
sentative or  official  character  and  so  accepted  by  him.4  So, 
too,  it  may  be  addressed  to  him  as  an  individual  and  accepted 
by  him  in  a  representative  capacity5  or  vice  versa*  So,  it 
may  be  drawn  on  a  company  and  accepted  by  its  manager 
as  such  ;7  and  the  corporation  being  misnamed  as  drawee  will 
not  relieve  it  from  liability,  if  its  identity  be  unquestioned.8 

But  a  bill  of  exchange  cannot  be  addressed  to  one  person 
and  accepted  by  another.9  Nor  can  a  letter  of  credit,  drawn 
by  mistake  on  John  &  Joseph  Naylor  &  Co.,  be  accepted  by 

1  Chili  (1865  Code  Com.  Art.  633);  Colombia  (1853  Code  Com.  Art.  384); 
■Costa  Rica  (1853  Code  Com.  Art.  373);  Ecuador  (same  as  Spain);  Mexico 
(1854  Code  Com.  Art.  223) ;  Guatemala,  Honduras  and  Paraguay  (1774  Ordc. 
Bilbao  ch.  13  \  2) ;  Russia  (1832  Exch.  Law  Art.  543) ;  Salvador  (1855  Code 
Com.  Arts.  381,  510);  Spain  (1829  Code  Com.  Art.  426) ;  Switzerland  (1805 
Zurich  I  1 ;  1863  Basle  §  3;  1859  Berne  \  3). 

2  Alabama  Coal  Mining  Co.  v.  Brainard,  35  Ala.  476  (1860). 

3Taber  v.  Cannon,  8  Mete.  456  (1844).  In  such  case  an  acceptance  by  the 
agent  alone  in  his  individual  name  renders  him  alone  liable. 

4Ta*sey  v.  Church,  4  Watts  &  S.  346  (1842).  In  this  case  an  acceptance  by 
"J.  T.,  administrator,"  of  a  bill  drawn  on  him  in  like  manner,  was  held  to 
render  him  personally  liable.  But  the  contrary  has  been  held  of  a  similar 
acceptance  by  "  N.  D.,  agent  of  the  Com.  Co.,"  of  a  bill  drawn  on  him  in 
that  form,  Shelton  v.  Darling,  2  Conn.  435  (1818).  For  fuller  consideration 
of  the  personal  responsibility  of  an  agent  as  acceptor,  see  section  I.  of  this 
chapter. 

5Biuce  v.  Lord,  1  Hilt.  247  (1856).  Here  the  acceptance,  "J.  P.  L,  treas- 
urer N.  M.  Co.,"  rendered  J.  P.  L.  prima  facie  personally  liable.  The  draft 
was  drawn  on  J.  P.  L.  simply. 

6Nieholls  v.  Diamond,  9  Exch.  154  (1853).  In  the  language  of  Alderson, 
B. :  "  He  chooses  to  accept  them  for  himself  and  others.  He  had  no  right 
to  accept  them  for  the  other  persons,  but  it  is  not  the  less  a  good  acceptance 
as  against  him."  In  this  case  a  draft  on  "J.  D  ,  purser  W.  D.  Mining  Co.," 
was  accepted,  "  J.  D  ,  per  proc.  W.  D.  Mining  Co.,"  the  company  being  an 
unincorporated  one,  and  J.  D.  was  held  personally  on  his  acceptance. 

'Okell  v.  Charles,  34  L.  T.  (n.  s.)  822  (1876). 

sHascall  v.  Life  Association,  5  Hun  151  (1875).  So,  an  acceptance  by  a 
firm  in  its  right  name  of  a  bill  drawn  on  it  in  a  wrong  name  is  a  good 
acceptance,  Lloyd  v.  Ashby,  2  B.  &  Ad.  23  (1831). 

•Chitty  189;  Jackson  v.  Hudson,  2  Campb.  447;  Davis  v.  Clarke,  6  Q.  B. 
16;  S.  C.,13  L.J.  Q.  B.  305. 


262  FORM THE    PARTIES    DESIGNATED. 

John  &  Jeremiah  Naylor  &  Co.,  so  as  to  hold  the  drawer, 
although  they  were  intended  by  him.1  But  a  bill  may  be' 
directed  to  A.,  "  or,  in  his  absence,  to  B.,"  and  accepted  by 
A.,  and  it  will  be  sufficient  to  declare  on  such  acceptance 
without  taking  any  notice  of  B.2  Again,  a  bill  may  be 
drawn  on  several  persons  and  accepted  by  only  part  of  them, 
and  may  then  be  described,  in  a  declaration  against  those 
who  accepted,  as  drawn  on,  and  accepted  by,  them  only.3 
And  if  a  bill  be  drawn  upon,  and  accepted  by,  a  partnership 
in  its  firm  name,  it  will  bind  all  partners,  whether  ostensible 
or  secret,  but  the  holder  need  only  sue  those  who  were  known 
to  him  as  such  when  he  took  the  bill.4  We  have  seen  that 
an  omission  of  the  drawee's  name  may  be  supplied  by  the 
acceptance.  Where,  however,  a  bill  is  indorsed  before  deliv- 
ery and  delivered  with  a  blank  left  for  the  drawee  and  ac- 
ceptor, the  indorser  cannot  be  changed  into  an  acceptor 
without  material  alteration.6  But  a  bill  may  be  addressed 
"  at "  instead  of  "  to  "  the  drawee  without  impairing  its  valid- 
ity.6 And  it  may  even  be  directed  to  a  particular  house 
instead  of  to  the  drawee  by  name.7 

Sometimes  an  instrument  in  the  form  of  a  promissory  note 
is  addressed  to,  and  accepted  by,  some  third  person,  and  a 
question  then  arises  whether  such  instrument  is  a  bill  or 

1  Grant  v.  Naylor,  4  Cranch  224  _(]808).  As  to  this  case  Marshall,  C.  J., 
says,  p.  235:  "If  it  be  a  case  of  mistake,  it  is  a  mistake  of  the  writer  only, 
not  of  him  by  whom  the  goods  were  advanced  and  who  claims  the  benefit 
of  the  promise.  *  *  *  The  company  to  which  it  is  delivered  are  not 
imposed  upon  with  respect  to  the  address,  but  knowing  that  the  letter  was 
not  directed  to  them,  they  trust  the  bearer,  who  came  to  make  contracts  on 
his  own  account.  In  such  a  case  the  letter  itself  is  not  a  written  contract 
between  D.  G.,  the  writer,  and  John  and  Jeremiah  Naylor,  the  persons  to 
whom  it  was  delivered.  To  admit  parol  proof  to  make  it  such  a  contract  is 
going  further  than  courts  have  ever  gone,  where  the  writing  is  itself  the 
contract,  not  evidence  of  a  contract,  and  where  no  pre-existing  obligation 
bound  the  party  to  enter  into  it." 

2Chitty  188;  Story  on  Bills  I  58;  Byles  90;  12  Mod.  447. 

3Story  on  Bills  g  58;  Mountstephen  v.  Brooke,  1  B.  &  Aid.  224  (1818). 

4De  Mautort  v.  Saunders,  1  B.  &  Ad.  398  (1830). 

5Mahone  v.  Central  Bank,  17  Ga.  Ill  (1855). 

"Shuttleworth  v.  Stephens,  1  Campb.  407  (1808);  Allan  v.  Mawson,  4  lb. 
115  (1814) ;  Rex  v.  Hunter,  Russ.  &  R.  C.  C.  511. 

'Atwood  v.  Griffin,  Ry.  <fe  Mood.  423.  So,  a  memorandum,  "Payable  at 
No.  1  Wilmot  St.,"  Gray  v.  Milner,  8  Taunt.  739;  S.  C,  3  Moore  90. 


DRAWER  AND  DRAWEE  ONE  PERSON.        263 

note.  It  may  be  treated  by  the  holder  at  his  option  as 
either.1  The  acceptor  of  such  an  instrument  is  liable  as  the 
acceptor  of  a  bill  of  exchange;2  and  the  drawer  remains  lia- 
ble as  the  maker  of  a  note.3 

§  172.  Drawer  and  Drawee  One  Person — So  Drawee  and 
Payee. — A  bill  of  exchange  is  valid  at  common  law,  although 
drawn  by  the  drawer  upon  himself.  Such  a  bill  is  in  all 
essentials  a  promissory  note  and  may  be  treated  as  such.4 
And  the  same  thing  is  true  of  a  bill  drawn  by  a  principal 
on  his  agent,5  or  by  the  directors  of  a  company  on  its  cashier.6 
Such  a  bill  may  also  be  regarded  as  an  accepted  bill  of  ex- 
change,7 and  no  notice  of  non-acceptance  is  necessary  in 
order  to  hold  the  drawer.8  Neither  is  a  notice  of  dishonor 
necessary  in  such  case,  but  it  seems  that  a  demand  of  pay- 
ment must  be  made.9     In  like  manner  a  bill  drawn  on  a 

^dis  v.  Bury,  6  B.  &  C.  433  (1827). 

2 Lloyd  v.  Oliver,  18  Q.  B.  471  (1852). 

3Brazelton  v.  McMurray,  44  Ala.  323  (1870). 

*Byles  90;  1  Daniel  134;  1  Parsons  62;  Chitty  188;  Block  v.  Bell,  1  M.  & 
Rob.  149;  Starke  v.  Cheesman,  Carth.  509;  Dehers  v.  Harriot,  1  Show.  163; 
Robinson  v  Bland,  2  Burr.  1077  ;  Miller  v.  Thomson,  3  Man.  &  G.  576 ;  Hasey 
v.  White  Pigeon  B.  S.  Co.,  1  Dougl.  193  (Mich.  1843) :  Bailey  v.  S.  W.  R.  R. 
Bank,  11  Fla,  266  (1866) ;  Fairchild  v.  Ogdensburgh  R.  R.,  15  N.  Y.  337  (1857) ; 
Commonwealth  v.  Butterick,  100  Mass.  12  (1868).  So,  after  acceptance, 
Wetumpka,  &c,  R.  R.  Co.  v.  Bingham,  5  Ala.  657  (1843).  And  the  effect  is 
the  same  where  a  bill  is  drawn  by  a  firm  in  London  on  its  house  in  Liver- 
pool, Miller  v.  Thomson,  supra;  Williams  v.  Ayers,  L.  R.  3  App.  Cas.  133 
(P.  C.  1877). 

5  Hardy  v.  Pilcher,  57  Miss.  18  (1879) ;  Wardens,  &c,  St.  James  Church  v. 
Moore,  1  Ind.  289  (1848).  This  was  the  case  of  a  draft  by  the  Secretary  on 
the  Treasurer  of  the  church  corporation. 

6 For  exam | iles  treated  as  notes,  see  Fairchild  v.  Ogdensburgh  R.  R.,  15  N.  Y. 
337  (1857)  ;  Mobley  v.  Clark,  28  Barb.  390  (1S58) ;  Tripp  v.  Swanzey  Mfg.  Co., 
13  Pick.  291  (1832) ;  Indiana,  &c,  R.  R.  Co.  v.  Davis,  20  Ind.  6  (1863);  Chicago, 
&c  .  R.  R.  Co.  v.  West,  37  lb.  216  (1871) ;  Allen  v.  Sea,  &c,  Assurance  Co  ,  9  C. 
B.  574  (1850).  For  examples  treated  as  bills,  seeBurnheisel  v.  Field,  17  Ind. 
609  (1861) ;  Wetumpka,  &c,  R.  R.  Co.  v.  Bingham,  5  Ala.  657  (1843). 

M  Daniel  134;  Cunningham  v.  Wardwell,  12  Me.  466  (1835).  Or  it  may 
be  treated  as  a  promissory  note  or  an  accepted  bill  at  the  holder's  option, 
Planters'  Bank  v.  Evans,  36  Tex.  594  (1871)  ;  Randolph  v.  Parish,  9  Porter 
76  (1839). 

"Roach  v.  Ostler,  1  M.  &  Ry.  120  (1827).  But  it  must  be  proved  in  order 
to  sustain  a  recovery  on  a  count  in  the  declaration  describing  the  drawee 
as  ;i  different  person  from  the  drawer  of  the  same  name,  lb. 

91  Daniel  134;  Kaskaskia  Bridge  Co.  v.  Shannon,  6  111.  15  (1844);  Lyell 
v.  Supervisors,  6  McLean  446  (1855);  Mobley  v.  Clark,  28  Barb.  390  (1858); 
Dennis  v.  Table  Mtn.  Water  Co.,  10  Cal.  369  (1858).  But  contra,  as  to  neces- 
sity for  demand,  Indiana,  &c,  R.  R.  Co.  v.  Davis,  20  Ind.  6  (1863). 


264  FORM THE    PARTIES    DESIGNATED. 

fictitious  drawee  may  be  treated  as  a  promissory  note,  on 
which  the  drawer  may  be  held  liable  without  demand  of 
payment  or  notice  of  dishonor.1  And  a  bill  of  exchange 
is  also  valid,  although  the  person  named  in  it  as  payee  be 
also  the  drawee.2  In  France  the  drawer  of  a  bill  of  ex- 
change cannot  by  the  Code  Napoleon  be  the  drawee,  although 
this  was  permitted  by  the  earlier  Exchange  Law  of  1673.3 
And  this  is  also  prohibited  by  statute  in  Denmark  and  Hun- 
gary.4 In  some  other  foreign  States  it  is  expressly  permitted 
by  statute.5  And  in  Switzerland  it  is  permitted,  if  the  bill 
be  drawn  upon  another  place.6 

1  Smith  v.  Bellamy,  2  Stark.  223  (1817).  In  this  case  an  accepted  bill  was 
delivered  to  the  plaintiff,  who  failed  to  find  the  acceptor  and  was  non-suited 
for  want  of  proof  of  presentment.  But  it  was  held  that  he  might  have 
charged  and  held  the  drawer  for  drawing  a  bill  on  a  person  who  was  not  in 
existence. 

2Chitty  33;  Holdsworth  v.  Hunter,  10  B.  &-C.  449  (1830)  ;  Wilder  v.  Sav- 
age, 1  Story  C.  C.  29  (1839) ;  Commonwealth  v.  Butterick,  100  Mass.  12 
(1868).  Or  it  may  be  payable  to  the  ''  order  of  the  acceptor,"  Witte  v.  Wil- 
liams, 8  So.  Car.  290  (1876).  And  an  instrument  in  which  drawer,  drawee 
and  payee  are  all  one  person  may  be  properly  described  as  a  bill  of  ex- 
change in  an  indictment  for  forgery,  Commonwealth  v.  Butterick,  supra. 

3Bedarride  Droit  Com.  Vol.  I.  p.  94. 

4 Denmark  (1825  Exch.  Law  \  2) ;  Hungary  (1844  Exch.  Law  Art.  15)  as  to 
drafts. 

^Austria  (1850  Exch.  Law  Art.  6);  Germany  (1848  Exch.  Law  Art.  6); 
Italy  (1865  Code  Com.  Art.  197) ;  Sweden  and  Norway  (1851  Exch.  Law  ch. 
H2). 

6 Switzerland  (1859  Berne  2  6;  1863  Basle  2  6. 


NEGOTIABILITY,  265 


CHAPTER  VI. 

FORM— WORDS   RELATING  TO   TRANSFER, 
CONSIDERATION,  Ac. 

I.  Negotiable  Words. 
II.  Expression  of  Consideration. 

III.  Blanks. 

IV.  Memoranda  and  Contemporaneous  Agreements, 
V.  Additional  Stipulations. 

I.    NEGOTIABLE    WORDS. 

173.  Negotiability— What  it  is. 

174.  Order — Bearer— How  far  Necessary. 

175.  "Bearer" — "A.  or  Bearer." 

176.  Negotiability — Enlarged  or  Restricted. 

177.  Non-negotiable  Instruments. 

§  173.  Negotiability — What  it  is. — The  word  "  negotiable  " 
is  often  used  to  signify  merely  that  a  contract  or  instrument 
is  assignable.  In  a  more  restricted  sense  it  may  mean  that 
an  instrument  is  assignable  and  may  be  sued  by  the  assignee 
in  his  own  name.1  Its  proper  commercial  sense  is  still  more 
restricted,  and  when  applied  in  this  sense  to  commercial 
paper,  it  means  not  only  that  the  negotiable  instrument  may 
be  assigned  and  that  the  assignee  may  bring  an  action  on  it 
in  his  own  name,  but  also  that  such  assignment  shall  be 
subject  to  no  equities  between  prior  parties,  and  that  out  of 
the  assignments  or  transfers  of  the  paper  shall  grow  an 
orderly  commercial  relation  and  liability  between  the  holder 
and  all  persons  whose  names  are  on  the  paper.  It  is  in  this 
sense  that  commercial  paper  is  said  to  be  "  negotiable  "  or 
"  non-negotiable."      Negotiability  is    not   necessary   to    the 


'"The  term  'negotiable,'  in  its  enlarged  signification,  applies  to  any 
written  security  which  may  be  transferred  by  indorsement  or  delivery,  so 
as  to  vest  in  the  indorsee  the  legal  title  so  as  to  enable  him  to  maintain  a 
suit  thereon  in  his  own  name,"  Scott,  J.,  in  Odell  v.  Gray,  15  Mo.  337  (1851). 


266  FORM WORDS    RELATING    TO    TRANSFER. 

existence  of  a  valid  bill  of  exchange,  note  or  check,  although 
this  was  at  one  time  doubted.1  And  where  an  action  is 
brought  on  a  lost  note  there  is  not  even  a  presumption  of  its- 
having  been  negotiable  in  form,  and  this  must  be  proved  by 
the  plaintiff.2 

§  174.  "  Order  " — "  Bearer  " — How  far  Necessary  to  Nego- 
tiability.— The  negotiability  of  an  instrument  is  generally 
indicated  by  the  words  "  or  order,"  "  or  bearer,"  after  the 
name  of  the  payee.  It  is  also  frequently  expressed  by  the 
forms,  "  Pay  to  the  order  of  A.  B.,"  "  Pay  to  bearer."  It  is 
sometimes  said  that  the  word  "  order  "  or  "  bearer  "  is  essen- 
tial to  negotiability.3  The  rule  more  correctly  stated  is  that 
these  words  or  their  equivalent  are  necessary  for  that  pur- 
pose.4 No  particular  words  are  necessary,  provided  the  in- 
tention of  the  instrument  is  clear.5  It  is  said  by  Mr.  Jus- 
tice Story  that  the  word  "assigns"  is  sufficient.6  But  in 
England  a  corporation  bond  payable  "  to  A.  and  B.,  their 

■Chitty  182;  1  Daniel  114;  1  Edwards  g  199;  Wells  v.  Brigham,  6  Cnsh.  6 
(1850) ;  Smith  v.  Kendall,  6  T.  R.  123,  1  Esp.  231 ;  Rex  v.  Box,  6  Taunt.  328 ; 
Goshen  Turnpike  Co.  v.  Hurtin,  9  Johns.  217  (1812) ;  Duncan  v.  Maryland 
Sav.  Bank,  10  Gill  &  J.  299  (1838) ;  Downing  v.  Backenstoes,  3  Cai.  137  (1805) ; 
Kendall  v.  Galvin,  15  Me.  132  (1838);  Sibley  v.  Phelps,  6  Cush.  173;  Cour- 
sin  v.  Ledlie,  31  Penna.  St.  506  (1858). 

2Yingling  v.  Kohlhass,  18  Md.  148  (1861). 

3Byles  85;  2  Parsons  45;  Fernon  v.  Farmer,  1  Harr.  32  (Del.  1832) ;  Roe 
v.  Hallett,  20  N.  Y.  Weekly  Dig.  34  (1884).  And,  it  seems,  this  is  also  the 
rule  as  to  bills  of  lading,  Henderson  v.  Gomptoir  d'  Escompte,  L.  R.  5  P.  C. 
253. 


4Story  on  Bills  J  60;  Chitty  225;  1  Edwards  |  194;  Hill  v.  Lewis,  1  Salk. 

19  •    "NnlnnH   11     TJintrorrdH     Q    W  .}>•»•     At     T     Oltt   MG11\.     TT11  .-1  ti  h<y(  <->n   11     TT'onrov     4 


v.  Forman,  1  Ohio  272  (1824) ;  Parker  v.  Riddle,  11  lb.  102  (1841) ;  Hackney 
v.  Jones,  3  Humph.  612  (1842) ;  Albright  v.  Griffin,  78  Ind.  182  (1881) ;  Sin- 
clair v.  Johnson,  85  lb.  527  (1882).  But  see,  contra,  Whiteman  v.  Childress, 
6  Humph.  307  (1845) ;  Porter  v.  City  of  Janesville,  3  Fed.  Rep.  617  (1880) ; 
Fawsett  v.  National  Life  Ins.  Co.,  97  111.  11  (1S80),  by  force  of  Illinois  statute. 
The  addition  of  the  words  "or  bearer,"  therefore,  constitutes  a  material 
alteration,  McCauley  v.  Gordon,  64  Ga.  221  (1879). 

5Chitty  183,  226;  1  Daniel  115;  1  Edwards  g  194;  Story  on  Prom.  Notes 
g  44;  Raymond  v.  Middleton,  29  Penna.  St.  529  (1858);  United  States  v. 
White,  2  Hill  59  (1841). 

6Story  on  Bills  \  60;  Story  on  Prom.  Notes  \  44.  Thus  a  coupon  bond 
payable  to  a  blank  payee,  "his  executors,  administrators  and  assigns,"  has 
been  held  to  be  negotiable,  Dutchess  County  Ins.  Co.  v.  Hachfield,  1  Hun 
675  (1874).  But  not  so  a  note  to  the  trustees  of  a  church  "or  their  col- 
lector," Noxon  v.  Smith,  127  Mass.  485  (1879). 


ORDER BEARER.  267 

executors,  administrators  or  assigns,  or  to  the  bearer  hereof," 
was  held  to  be  assignable  clear  of  prior  equities  in  equity 
only}  And  a  like  bond  payable  "  to  C.  or  his  executors,, 
administrators  or  transferees,  or  to  the  holder  for  the  time 
being,"  was  held  to  be  non-negotiable  and  subject  to  equi- 
ties.2 But  a  note  payable  to  "A.  or  holder,"  is  equivalent  to 
one  payable  to  "A.  or  bearer  "  and  is  negotiable.3  And  the 
interposition  of  a  word  of  description,  as  "  to  A.  B.,  trusteer 
or  order,"  does  not  affect  the  negotiability  of  the  instru- 
ment.4 It  seems,  too,  that  words  of  negotiability  are  unneces- 
sary in  a  bill  or  note  held  by  the  king  or  by  the  government.5 
Such  words  seem  generally  to  be  required  by  statute  in  the 

lln  re  Blakely  Ordnance  Co.,  L.  R.  3  Ch.  154  (1867). 

2Jn  re  Natal  Investment  Company,  L.  R.  3  Ch.  355  (1868).  Lord  Chancel- 
lor Cairns  says  of  these  words  (p.  360) :  "The  covenant  is  made  with  him. 
The  payment  is  to  be  to  him  or  his  executors,  administrators  or  transferees. 
Stopping  at  that  point,  the  word  'transferees'  would  obviously  be  simply 
equivalent  to  'assigns,'  and  'assigns'  would  mean,  according  to  the  ordinary 
construction  of  such  an  instrument,  an  assign  by  deed — an  assign  in  a 
way  in  which  an  assignee  of  a  bond  or  other  chose  in  action  of  the  same 
kind  is  created.  The  executors  and  the  administrators  would  be  subject,  if 
the  claim  for  payment  were  made  by  them,  to  any  equities  which  might 
exist  against  Coqui  himself.  So,  also,  assignees  or  assigns  by  deed  would  be 
subject  to  the  same  equities.  There  is  nothing,  therefore,  in  the  debenture 
up  to  that  point  which  would  negative  the  usual  rule  of  equity,  that  the 
assignee  must  take  subject  to  all  the  equities  between  the  original  parties 
to  tiie  contract.  We  then  find  added  these  words,  after  the  word  'transfer- 
ees,' 'or  to  the  holder  for  the  time  being  of  this  debenture.'  As  I  under- 
stand those  words,  they  do  nothing  more  than  this:  in  order  to  save  the 
trouble  and  expense  of  assignments  by  deed,  they  provide  that  the  company 
will  recognize  any  person  who  holds  the  debenture  to  be  in  as  good  a  posi- 
tion as  if  he  had  become  the  assign  of  it  by  deed,  and  will  not  insist  upon 
his  proving  his  title  by  producing  a  formal  assignment;  but  there  is  nothing 
whatever  in  these  words  which,  as  it  seems  to  me,  is  intended  to  put  the 
holder  for  the  time  being  in  a  better  position  than  an  assignee  by  deed.  It 
would  be  in  the  highest  degree  unreasonable  to  suppose  that  an  assign  by 
the  most  formal  mode  of  assignment  would  take  subject  to  the  equities- 
against  Coqui,  whereas  an  assign,  not  by  deed  but  by  merely  manual  trans- 
fer of  the  document,  would  take  free  from  those  equities."  Sir  R.  Malms, 
V.  O,  however,  in  commenting  on  this  opinion  two  years  later,  In  re  Impe- 
rial Land  Co.,  L.  R.  11  Eq.  493,  says:  "I  am  unable  to  see  any  distinction 
between  '  payable  to  bearer'  and  'to  the  holder  for  the  time  being.'" 

'Putnam  v.  Crymes,  1  McMull.  9  (1S40). 

♦Bush  v.  Peckard,  3  Harr.  385  (Del.  1841). 

6Story  on  Bills  $  60.  And,  therefore,  the  assignment  of  a  non-negotiable 
note  to  the  United  States  will  vest  the  legal  title  in  the  government,  United 
States  v.  White,  2  Hill  59  (1841) ;  United  States  v.  Buford,  3  Pet.  12.  So,  the 
government  can  take  legal  title  to  a  note  payable  to  A.  B.,  by  operation  of 
law  without  indorsement,  Lambert  v.  Taylor,  4  B.  &  C.  151  (1825). 


268  FORM WORDS    RELATING    TO    TRANSFER. 

United  States.1    And  the  Irish  law  on  the  subject  now  corre- 

'Such  words  are  not  necessary  to  negotiability  in  Colorado,  Thackeray  v» 
Hanson,  1  Col.  305  (1871). 

In  California  a  negotiable  instrument  must  be  "to  order  or  bearer"  (Civ. 
Code  of  1872  g  8087) ;  "  or  words  equivalent  thereto"  (lb.  g  8101). 

In  Connecticut  negotiable  promissory  notes  must  be  "payable  to  any  per- 
son or  his  order  or  to  bearer"  (Act  of  1811 ;  Gen.  St.  Rev.  1875  p.  343  \  1). 
Until  this  act  notes  were  not  negotiable  in  Connecticut,  2  Root  524. 

In  Dakota,  the  above-mentioned  provisions  of  the  California  Code  have 
been  copied  (Rev.  Code  1877  %%  1821,  1832). 

In  Delaware  "  all  bonds,  specialties  and  notes  in  writing  payable  to  any 
person  or  order  or  assigns  "  may  be  assigned  or  indorsed  and  sued  upon  by 
the  assignee  in  his  own  name  (Rev.  Code  1852  and  1874  c.  63  {  8). 

In  Georgia  a  promissory  note  is  defined  as  "a  promise  made  by  one  or 
more  to  pay  to  another  or  order  or  bearer,"  &c.  (Code  1873  H  2774,  2776). 

So,  in  Idaho  (Rev.  L.  1875  p.  652  \  1). 

In  Illinois  notes  and  bills  payable  to  any  person  named  as  payee  therein 
are  transferable  by  indorsement  (1845  R.  S.  p.  384;  1880  R.  S.,  Hurd's  Ed., 
c.  9S  I  3). 

In  Indiana  only  such  notes  as  are  payable  to  order  or  bearer  and  in  an 
Indiana  bank,  are  negotiable  clear  of  defense  (2  R.  S.  1876,  Davis'  Ed.,  c. 
177  I  6).  Inland,  and  of  course  foreign,  bills  of  exchange  are  governed  by 
the  same  rule  (lb.  I  5). 

In  Iowa  promissory  notes  for  the  payment  of  a  sum  of  money  to  be  nego- 
tiable must  be  payable  to  the  payee  "  or  his  order  or  bearer  or  to  bearer 
only"  (1880  Rev.  Code  \  2082).  "  Bonds,  due-bills  and  all  instruments  in 
writing  *  *  *  to  pay  to  another  without  words  of  negotiability  a  sum 
of  money  in  property  or  labor  "  are  assignable  by  indorsement  subject  to 
equities  (lb.  \  2084).  Bonds,  bills,  &c,  "  to  pay  a  sum  of  money  in  property 
or  labor  or  to  pay  or  deliver  property  or  labor  "  *  *  *  are  negotiable 
with  all  the  incidents  of  negotiability  whenever  it  is  manifest  from  the  terms 
that  such  was  the  intent  of  the  maker,  but  the  use  of  the  technical  words 
"order"  or  "bearer"  alone  will  not  manifest  such  intention  (lb.  \  2085). 

In  Kansas  negotiable  words  are  necessary  to  the  negotiability  of  bonds,  bills 
and  notes,  and  such  instruments  made  "payable  to  any  person  alone  and 
not  drawn  payable  to  any  order,  bearer  or  assigns  "  are  not  negotiable  (1879 
Comp.  L.  c.  14  I  1 ;  1881  Com  p.  L.  127  \  1 ;  1859  P.  L.  71). 

In  Kentucky  notes  "  payable  to  any  person  or  persons  or  to  a  corpora- 
tion," if  payable  at  certain  banks,  are  placed  on  the  footing  of  foreign 
bills  (1881  G.  S.  c.  22  \  21). 

In  Maryland  the  statute  of  Anne  is  still  in  force  (Bill  of  Rights  Art.  V.; 
Alexander's  British  Statutes  p.  649). 

In  Massachusetts  bonds  and  other  obligations  of  corporations  and  joint 
stock  companies  for  the  payment  of  money  to  order  or  to  bearer,  or  to  a 
designated  person  or  bearer,  are  negotiable  (1859  G.  S.  c.  53  I  6). 

In  Michigan  promissory  notes  for  the  payment  of  money  to  any  person 
"  or  his  order,  or  to  the  order  of  any  other  person  or  unto  the  bearer,"  are 
made  negotiable  (1  Comp.  L.  1871  p.  515  g  1). 

In  Mississippi  promises  for  the  payment  of  money  or  of  any  other  thing 
"  whether  payable  to  order  or  assigns  or  not,"  are  made  assignable  subject 
to  equities  (1880  Rev.  Code  \  1124;  1871  R.  C.  \  2228). 

In  Missouri  negotiable  notes  must  be  "to  a  payee  therein  named  or  order 
or  bearer"  (1  R.  S.  1879  c.  10  \  547  ;  1872  ed.  Wagner  p.  216  \  15). 

In  Nebraska  negotiable  instruments  must  be  drawn  payable  "to  order, 
bearer  or  assigns  "  (1873  G.  S.  c.  32  \  1 ;  1866  R.  S.  \  27). 

In  Nevada  only  notes  which  are  payable  "  to  any  other  person  (than  the 
maker)  or  to  his  order,  or  to  the  order  of  any  other  person  or  unto  the 
bearer,"  and  those  which  are  negotiated  by  the  maker  payable  to  his  own 


ORDEE BEAEEE.  269 

gponds  with  that  of  England.1  But  the  law  of  Scotland  does 
not  require  the  words  "or  order"  in  a  bill  of  exchange  to  ren- 
der it  transferable  by  indorsement.2  In  other  foreign  countries 
it  is  required  by  statute  that  such  words  or  their  equivalent 
be  used.3     Making  an  instrument  payable  "to  the  order  of 

order  or  to  that  of  a  fictitious  person,  are  made  negotiable.  (1  Comp.  L.  1873 
c.o?  9;  1861  P.  L.  p.  4). 

In  New  Jersey  the  statute  relating  to  negotiable  notes  includes  only  those 
payable  to  another  person  (than  the  maker)  or  order  or  bearer  (1795  Pat. 
Rev.  p.  342  H;  1874  Rev.  p.  897  I  1). 

So,  in  New  York  (2  R.  S.,  ed.  1875,  p.  1160  \  1 ;  1  R.  L.  1801  p.  151). 

In  North  Carolina  negotiable  instruments  may  be  "  expressed  or  not  to  be 
to  order  "  (1873  Bat.  Rev.  c.  10  \  1). 

In  Ohio  they  must  be  payable  to  order,  bearer  or  assigns  (1880  R.  S.  g 
3171;  1830  P.  L.  p.  217  \  1). 

In  Pennsylvania  negotiable  notes  dated  in  Philadelphia  under  the  act  of 
1797  must  be  payable  "to  the  order  of  the  payee"  (1872  Purd.  Dig.  p.  1173 
\  1) ;  so,  too,  all  bills,  notes,  drafts,  checks,  &c,  drawn  or  indorsed  in  Penn- 
sylvania payable  elsewhere  (1872  Purd.  Dig.  p.  1173  \  2;  1819  P.  L.  p.  427  I 
11).  Other  bills,  notes,  &c,  seem  to  have  been  left  to  the  rule  of  the  com- 
mon law. 

In  Rhode  Island  negotiable  notes  must  be  payable  to  order  or  bearer  (1872 
G.  S.  (r.  129  \  6). 

In  South  Carolina  likewise  (1873  R.  S.  p.  319  \  8). 

In  Tennessee  only  notes  payable  "  to  any  other  person  (than  the  maker) 
or  order,  or  to  the  order  of  any  other  person,"  are  made  negotiable  bv  the 
statute  (1871  C.  S.  §  1956;  1762  P.  L.  c.  7  §  2).  But  see  Whiteman  v.  Child- 
ress, 6  Humph.  307  (1845). 

In  Vermont  negotiable  bills  and  notes  must  be  payable  to  a  person  or  order 
or  bearer  (1862  G.  S.,  ed.  1870,  p.  508  \  5). 

So,  in  Wisconsin  (1878  R.  S.  \  1675).  In  this  State  it  is  further  provided 
that  no  order  drawn  on  the  treasurer  of  a  municipal  corporation  and  no 
instrument  executed  by  a  corporation  shall  be  negotiable  "  unless  expressly 
authorized  by  law  to  be  made  negotiable"  (1878  R.  S.  \  1675);  and  that 
warehouseman's  receipts  shall  be  negotiable  unless  "not  negotiable"  is 
written  on  them  (lb.  I  1676). 

•9  Geo.  IV.  c.  24  I  2 ;  Chitty  225. 

•Chitty  183,  225;  Thompson  on  Bills  101;  1  Edwards  \  198. 

sChitty  225;  1  Pardessus  346,  358.  But  a  Bank  of  England  note  payable 
to  bearer  and  transferred  by  delivery  in  France,  is  sufficiently  transferred 
to  vest  the  legal  title  in  the  holder,  De  la  Chaumette  v.  Bank  of  England,  2 
B.  &  Ad.  385  (1831).     See,  also,  9  B.  &  C.  208,  s.  c. 

The  Code  Napoleon  (g  110)  requires  a  bill  of  exchange  to  be  drawn  to  the 
•  rder  of  a  third  person  or  of  the  drawer.  This  law  applies  to  France,  Hdyti, 
i  reece,  San  Domingo,  Canton  of  Geneva  and  Turkey. 

In  Spain  no  order  or  promise  to  pay  is  a  commercial  contract  without 
being  drawn  to  order  (1829  Code  Com.  Art.  570).  If  drawn  in  favor  of  the 
bearer  and  no  payee  named,  it  is  the  foundation  of  no  liability  or  action  at 
law  (Art.  572).  But  a  bill  of  exchange  may  be  drawn  to  the  order  of  the 
drawer,  with  a  statement  of  consideration  to  be  received  by  himself  (Art. 
430). 

So,  too,  in  Colombia  (1853  Code  Com.  Arts.  388,  524,  526) ; 

Costa  Rica  (1853  Code  Com.  Arts.  377,  517,  519)  ; 

Ecuador  (Code  Com.  1829,  same  as  that  of  Spain); 

Mexico  (1854  Code  Com.  Arts.  325,  449,  452)  ; 

Peru  (1853  Code  Com.  Arts.  387,  531,  533). 

In  Uruguay  negotiable  drafts,  bills  of  exchange,  indorsements  and  prom- 


270  FORM WORDS    RELATING    TO    TRANSFER. 

A.,"  has  the  same  effect  as  making  it  "to  A.  or  his  order."1 
Making  it  payable  simply  "to  order"  is  equivalent  to  making 
it  payable  to  a  fictitious  person  and  hence  to  bearer.2 

§  175.  "Bearer" — Transferable  by  Delivery. — Commercial 
paper  payable  to  bearer  is  negotiable  by  delivery  ;3  and  an 
action  will  lie  in  the  name  of  any  holder.  This  is  true  of  a 
check  as  well  as  a  bill  of  exchange  or  note.*  An  instrument 
payable  to  "A.  or  bearer,"  is  equivalent  to  one  made  payable 

issory  notes  must  all  be  to  order  (1865  Code  Com.  Arts.  790,  824,  933) ;  but 
due-bills,  promissory  notes  and  other  instruments  for  the  payment  of  money 
to  the  bearer  are  transferable  by  delivery  (lb.  933). 

To  be  transferable  by  indorsement  a  bill  of  exchange  must  be  drawn  to 
"order"  in  the  Argentine  Republic  (Code  Com.  1862  Art.  777,  or,  it  may  be, 
,to  the  order  of  bearer,  lb.  781 — and  so  as  to  promissory  notes,  lb.  916) ; 

Bolivia  (Code  Com.  1834  lg  460,  461) ; 

Venezuela  (Code  Com.  1862  Art.  2)  ; 

Brazil  (Code  Com.  1850  Art.  354),  and  it  must  appear  whether  it  is  pay- 
able to  order  and  to  whose  order; 

Chili  (Code  Com.  1865  Art.  634);  but  "to  the  rightful  owner,"  "to  the 
disposition  of,"  &c,  or  other  equivalent  words  will  do  as  well,  drafts  and 
notes  between  merchants  being  excepted  from  the  requirement  of  such 
words. 

In  Denmark  a  bill  may  be  drawn  to  the  order  of'a  third  person  or  of  the 
drawer,  or  to  the  bearer  (Exch.  Law  1825  \\  5,  6). 

In  Germany  (Exch.  Law  1848  Art.  9)  and  Austria  (Exch.  Law  1850  Art.  9) 
provision  can  be  made  against  the  negotiating  of  a  bill  of  exchange  by  the 
words  "  not  to  order  "  or  other  equivalent  words. 

In  Holland  only  instruments  payable  to  order  are  made  negotiable  by 
indorsement  (Exch.  Law  1838  Art.  133). 

In  Hungary  the  words  "or  order"  after  the  payee's  or  indorsee's  name 
are  requisite  to  its  negotiability  (Exch.  Law  1860  \\  15,  31). 

In  Italy  a  bill  of  exchange'is  either  payable  to  the  order  of  a  third  person 
or  of  the  drawer  (1865  Code  Com.  Art.  196). 

In  Nicaragua  a  draft  must  be  payable  "to  order"  or  "to  indorsement" 
(Code  Com.  1869  Art.  315). 

In  Portugal  bills  of  exchange,  not  drawn  to  "order,"  are  mere  evidences 
of  debt  (1833  Code  Com.  Art.  425) ;  so,  too,  inland  bills  and  promissory  notes 
(lb.  428,  437).  But  a  letter  of  credit  can  only  be  made  payable  to  a  par- 
ticular person  and  not  to  order  (lb.  445). 

In  Sweden  and  Nonvay  bills  of  exchange  are  transferable  without  nego- 
tiable words  (1851  Exch.  Law  ch.  1  §  11). 

Ruling  v.  Hugg,  1  Watts  &  S.  419  (1841) ;  Howard  v.  Palmer,  64  Me.  86 
(1874);  Durgin  v.  Bartol,  lb.  473.  And  a  bill  drawn  payable  to  the  order 
of  the  drawer  is  payable  to  the  drawer  and  can  be  sued  upon  by  him  after 
its  acceptance,  Smith  v.  McClure,  5  East  476  (1804) ;  Frederick  v.  Colton,  2 
Show.  8. 

2Davega  v.  Moore,  3  McCord  482  (1826).  But  it  seems  that  an  indorse- 
ment, "  pay  the  amount  to  order  for  my  use,"  destroys  the  negotiability  of 
a  note,  Brown  v.  Jackson,  1  Wash.  C.  C.  512  (1806). 

sCobb  v.  Duke,  36  Miss.  60  (1858).  For  cases  on  this  subject,  see  chapter 
on  Transfer,  infra. 

♦Keene  v.  Beard,  8  C.  B.  (n.  s.)  372  (1860). 


NEGOTIABILITY.  271 

to  bearer.1  Formerly  such  instruments  were  thought  not  to 
be  negotiable,  because  they  contained  no  authority  to  make 
assignment,2  They  are  now,  however,  held  to  be  negotiable 
as  fully  as  if  payable  to  "  order."3  But  in  some  States  they 
are  assignable  by  indorsement  only.4  The  word  "  bearer," 
if  used  merely  as  description  of  a  payee  named  in  the  instru- 
ment, e.  g.  "  to  the  bearer,  A.,"  adds  no  force,  negotiable  or 
otherwise,  to  the  name,  and  the  instrument  is  one  payable  to 
A.  only  and  not  negotiable.5  • 

§  176.  Negotiability — Enlarged  or  Restricted. — The  nego- 
tiable character  of  an  instrument,  as  shown  upon  its  face,  is 
sometimes  enlarged  by  the  terms  of  an  indorsement.  Thus, 
a  note  payable  to  A.  "  or  order,"  being  afterwards  indorsed 
payable  to  B.  "  or  bearer,"  is  thereby  rendered  transferable 
by  delivery.6  But  if  originally  negotiable,  it  will  not  be 
rendered  non-negotiable  by  a  special  indorsement  to  A.  B., 
or  to  A.  B.  "  at  his  own  risk."7  Although,  in  the  latter  case 
at  least,  the  indorser  would  not  be  liable  on  his  indorsement.8 
So,  a  negotiable  note  is  not  rendered  non-negotiable  by  the 
indorsement  of  a  non-negotiable  guaranty  upon  it;9   nor, 

•Byles  85;  1  Daniel  ]14;  1  Edwards  g  194;  Grant  v.  Vaughan,  3  Burr. 
1516;  Bullard  v.  Bell,  1  Mason  252  (1817). 

*Chitty  225;  1  Daniel  114;  Horton  v.  Coggs,  3  Lev.  299;  Hodges  v.  Stew- 
ard, 1  Salk.  125;  Nicholson  v.  Sedgwick,  1  Ld.  Raym.  180. 

3Chitty225;  1  Edwards  \  194;  Bullard  v.  Bell,  1  Mason  252  (1817) ;  Hutch- 
ings  v.  Low,  1  Green  246  (N.  J.  1832);  Tillman  v.  Ailles,  5  Sm.  &  M.  373 
(1845);  Mathews  v.  Hall,  1  Vt.  317  (182S);  Greencaux  v.  Wheeler,  6  Tex. 
515  (1851) ;  Hopkins  v.  Seymour,  10  lb.  202  (1853). 

'Garvin  v.  Wiswell,  83  111.  215  (1876) ;  3  Gross.  Stats.  1869  p.  461  \  4;  1880 
R.  8.  Hurd's  Ed.  c.  98  I  3.  So,  too,  in  Ohio,  Avery  v.  Latimer,  14  Ohio  512 
(1846) ;  Fallis  v.  Howarth,  Wright  303  (1833) ;  Laws  1820  p.  217.  So,  too.  in 
Alabama,  where,  however,  the  statute  (1837)  did  not  extend  to  then  existing 
instruments,  Sprowl  v.  Sim pk ins,  3  Ala.  515  (1842).  In  Kansas  such  in- 
struments were  formerly  subject  to  defense  when  transferred  by  indorse- 
ments, Blood  v.  Northrup,  1  Kans.  28;  1855  P.  L.  155;  but  this  is  now  true 
only  of  indorsements  after  maturity,  1859  P.  L.  71 ;  1881  Comp.  L.  127  §  2. 
\w  Illinois  instruments  payable  to  bearer  may  be  transferred  by  delivery, 
Gross.  Stats.  1874  p.  293  g  8 ;  1880  R.  S.  c.  98  I  8. 

J  Warren  v.  Scott,  32  Iowa  22  (1871). 

'Shelton  v.  Sherfey,  3  Iowa  108  (1851). 

'Rice  v.  Stearns,  3  Mass.  225  (1807) ;  Leavitt  v.  Putnam,  3  N.  Y.  494  (1850 1, 
reversing  1  Sandf.  199. 

8 Rice  v.  Stearns,  3  Mass.  225  (1807). 

•2  Parsons  135;  Upham  v.  Prince,  12  Mass.  14  (1815).  And  see  Taylor  v. 
Binney,  7  lb.  479  (1811). 


272  FORM — WORDS   RELATING   TO    TRANSFER. 

e  converso,  is  a  non-negotiable  guaranty  made  negotiable  by 
a  negotiable  indorsement.1  And  it  has  been  held  that. an 
agreement  by  the  payee  of  a  note  not  to  sell  it,  indorsed 
on  a  note,  is  not  ]Dart  of  it  and  cannot  defeat  the  holder's 
right  to  recover.2  But  where  a  note  payable  to  A.  or  order 
is  assigned  by  delivery  without  indorsement,  it  passes  subject 
to  equities.3 

§  177.  Non-negotiable  Instruments. — A  bill  of  exchange 
or^  other  commercial  instrument,  as  has  been  seen,  may  be 
made  payable  only  to  the  payee  named  in  it.  In  such  event 
it  is  non-negotiable,  but  constitutes  a  perfectly  valid  obli- 
gation between  the  original  parties.4  It  is  also  now  gener- 
ally assignable  at  law,  and  always  was  so  in  equity.5  And 
in  some  States,  at  least,  the  assignee  of  such  instrument  may 
sue  upon  it  in  his  own  name.6  Indeed,  as  affecting  the  rela- 
tion of  the  original  parties  to  one  another,  the  words  "or 
order"  are  so  immaterial  that  their  omission  in  pleading  is 
of  no  consequence.7 

But,  in  general,  where  words  of  negotiability  are  wantingr 
the  indorsee  or  assignee  takes  the  instrument  subject  to  equi- 

1Fell  on  Guaranty,  &c,  298 ;  2  Parsons  133 ;  Hayden  v.  Weldon,  14  Vroom 
128  (1881);  Miller  v.  Gaston,  2  Hill  192  (1842);  Lamourieux  v.  Hewit,  5 
Wend.  307(1830);  Leggett  v.  Raymond,  6  Hill  639  (1844),  the  guarantor 
being  held  in  this  case  as  an  indorser;  True  v.  Fuller,  21  Pick.  140  (1838) ; 
Tuttle  v.  Bartholemew,  12  Mete.  452  (1847) ;  Belcher  v.  Smith,  7  Cush.  482 
(1851);  McDoal  v.  Yeomans,  8  Watts  361  (1839).  It  is  said,  however,  by 
Chancellor  Walworth  that  "  a  guaranty  indorsed  upon  a  negotiable  note, 
whereby  the  guarantor  agrees  with  the  holder  of  the  note  that  he  will  be 
answerable  that  the  note  shall  be  paid  to  him,  or  to  his  order,  or  the  bearer 
thereof,  when  it  becomes  due  is  probably  negotiable  by  the  transfer  of  the 
note  upon  which  it  is  written,"  McLaren  v.  Watson,  26  Wend.  430  (1841). 
So,  too,  Ketchell  v.  Burns,  24  lb.  456  (1840). 

?Leland  v.  Parriott,  35  Iowa  454  (1872).  But  an  indorsement,  "  This  note 
is  not  transferable,"  has  been  held  to  destroy  its  negotiability,  Friedman  v. 
WTagner,  1  Tex.  A  pp.  734  (1879). 

3  Jones  v.  Witter,  13  Mass.  305.(1816). 

*Byles  85;  1  Daniel  115;  1  Edwards  \  199;  Smith  v.  Kendall,  6  T.  R.  123; 
Rex  v.  Box,  6  Taunt.  325.  And  it  may  be  declared  on  as  a  note,  Downing 
v.  Backenstoes,  3  Caines  137  (1805). 

5Halsey  v.  De  Hart,  Coxe  93  (1791);  Maxwell  v.  Goodrum,  10  B.  Mon.  286 
(1850). 

•Goodman  v.  Fleming,  57  Ga.  350  (1876).  Subject,  however,  to  any  defense 
arising  out  of  original  want  of  consideration,  Cohen  v.  Prater,  56  Ga.  203 
(1876). 

7 Maxwell  v.  Goodrum,  10  B.  Mon.  286  (1850). 


NON-XEGOTIABLE    INSTRUMENTS.  273 

ties  existing  between  the  original  parties.1  In  substance, 
therefore,  the  only  liability  of  maker  or  drawer  is  what  he 
originally  assumed  toward  the  payee  named  by  him.2  And 
an  indorsement  of  a  non-negotiable  instrument  by  the  payee 
will  not  render  it  negotiable  ;3  nor  give  the  indorsee  an  action 
against  prior  parties;4  although  it  will  render  such  indorser 
liable  to  his  indorsee;5  and  will,  if  he  use  fit  words  in  the 
indorsement,  render  him  liable  to  all  subsequent  indorsees.6 

Without  words  of  negotiability  a  note  may  still,  by  the 
Statute  of  Anne,  be  entitled  to  grace.7  But  as  to  this  a  dif- 
ferent rule  has  been  followed  in  Connecticut.8  An  omission 
of  the  words  "or  order"  by  mistake  may  be  corrected,  and 
in  England  the  omitted  words  may  be  inserted  without 
stamping  the  instrument  afresh.9 

Sometimes  commercial  paper  is  drawn  "negotiable"  at  a 
particular  bank  or  other  place.  This  is  held  to  authorize 
payment  by  the  bank  clear  of  any  set-off  that  the  maker  or 
drawer  might  have.10    But  making  it  payable  and  negotiable 

1  Dver  v.  Horner,  22  Pick.  253  (1839) ;  Sanborn  v.  Little,  3  N.  H.  539  (1826) ; 
Wiggins  v.  Damrell,  4  lb.  69  (1827). 

'Hill  v.  Lewis,  1  Salk.  132;  Hackney  v.  Jones,  3  Humph.  612  (1842) ;  Fer- 
non  v.  Farmer,  1  Harr.  32  (Del.  1832) ;  Warren  v.  Scott,  32  Iowa  22  (1871) ; 
Reed  v.  Murphy,  1  Ga.  236  (1846);  Hosford  v.  Stone,  6  Neb.  380(1877); 
Maule  v.  Crawford,  14  Hun  193  (1878)  ;  Backus  v.  Danforth,  10  Conn.  297 
(1834) ;  Noland  v.  Ringgold,  3  Harr.  &  J.  216  (1811). 

sGregg  v.  Johnson,  37  Tex.  558  (1872). 

«Chitty  183;  1  Daniel  115;  Douglass  v.  Wilkeson,  6  Wend.  637  (1831); 
Pratt  v.  Thomas,  2  Hill  654  (So.  Car.  1835) ;  Barriere  v.  Nairac,  2  Dall.  249 
(1796) ;  Gerard  v.  La  Coste,  1  lb.  194  (1787). 

51  Daniel  115;  Story  on  Bills  H-60.  199;  Hill  v.  Lewis,  1  Salk.  132;  Sweet- 
ser  v.  French,  13  Mete.  262  (1847).  And  see  Smurr  v.  Forman,  1  Ohio  272 (1824 J. 

6Chitty  183,  226;  Codwise  v.  Gleason,  3  Day  12  (1808) ;  Josselyn  v.  Ames, 
3  Mass.  274  (1807) ;  Seymour  v.  Van  Slyck,  8  Wend.  421  (1832).  But  to  give 
such  effect  under  the  English  Stamp  Act  a  second  stamp  is  now  necessary 
there,  Chitty  226;  Plimley  v.  Westley,  2  Scott  423;  S.  C,  2  Bing.  N.  C.  249. 

'Smith  v.  Kendall,  6  T.  R.  123;  1  Esp.  231;  Burchell  v.  Slocock,  2  Ld. 
Raym.  1545 ;  Duncan  v.  Maryland  Saw  Bk.,  10  Gill  &  J.  299  (1S38).  And  if 
the  maker  himself  put  such  a  note  in  circulation  elsewhere,  he  cannot  ob- 
ject to  its  being  negotiated  without  regard  to  the  restriction,  Wardell  v. 
Hughes,  3  Wend.  418  (1829). 

"Backus  v.  Danforth,  10  Conn.  297  (1834). 

9Chitty  183,  225;  Kershaw  v.  Cox,  3  Esp.  246;  Knill  v.  Williams,  10  East 
435;  Cole  v.  Parkin,  12  lb.  471. 

,01  Daniel  116;  1  Edwards  \  195.  "  It  would  be  a  fraud  on  the  bank  to  set 
up  offsets  against  the  note  in  consequence  of  any  transactions  between  the 

S 


274  FOKM WORDS    RELATING    TO    TRANSFER. 

at  such  bank  has  in  general  no  effect  upon  the  question  of 
its  negotiability.1  In  Pennsylvania,  however,  a  distinction 
has  been  made  between  a  note  "payable  and  negotiable  with- 
out defalcation  at  the  Kensington  Bank"  and  one  "negotiable 
and  payable  at,"  <fec,  the  former  being  held  to  be  negotiable 
only  if  negotiated  at  -the  designated  bank.2  And  in  Ken- 
tucky it  seems  that  a  note  is  commercial  paper  only  if  made 
payable  and  negotiable  at  a  bank  and  negotiated  there.3 

Other  words  and  circumstances  affecting  the  negotiability 
of  an  instrument  are  considered  in  other  parts  of  this  work. 
In  considering  the  transfer  of  commercial  paper  hereafter  it 
will  be  seen  that  the  question  of  continued  negotiability 
arises  upon  each  change  of  ownership  and  is  determined  in 
general  by  the  same  rules  which  fix  the  original  character 
of  the  paper.  As  used  in  this  work  the  terms  "bill,"  "note" 
and  "check,"  relate  to  negotiable  instruments,  unless  non- 
negotiable  instruments  are  mentioned  or  clearly  intended. 

parties.  These  offsets  are  waived  and  cannot,  after  the  note  has  been  dis- 
counted, be  again  set  up,"  Marshall,  C.  J.,  in  Mandeville  v.  Union  Bank,  9 
Cranch  9  (1815). 

ll  Edwards  §195. 

*  Raymond  v.  Middleton,  29  Penna.  St.  529  (1858). 

sStapp  v.  Anderson,  1  A.  K.  Marsh.  398  (1819).  See,  too,  Bell  v.  More- 
head,  3  16.  158  (1820) ;  Jones  v.  Wood,  lb.  162  (1820). 


VALUE    RECEIVED.  275 


II.    EXPRESSION    OF    CONSIDERATION. 

178.  "  Value  Received  " — Presumption. 

179.  Statutes  as  to  Consideration. 

180.  Effect  of  "Value  Received  "—Pleading— Evidence. 

§  178.  "Value  Received"  —  Presumption.  —  The  words 
"  value  received  "  are  usually  found  in  bills  of  exchange  and 
promissory  notes,  and  sometimes  in  drafts,  to  express  the 
consideration.  In  a  note  these  words  can  only  refer  to  a 
consideration  moving  from  the  payee  to  the  maker.1  So,  in 
the  case  of  a  bill  of  exchange  payable  to  the  order  of  the 
drawer,  there  can  be  no  ambiguity,  as  the  words  can  only 
mean  value  received  by  the  acceptor  from  the  drawer.2  But 
in  bills  of  exchange  payable  to  the  order  of  a  person  other 
than  the  drawer,  the  words  may  mean  either  a  consideration 
moving  from  the  payee  to  the  drawer  or  from  the  drawer  to 
the  acceptor.  Of  these  meanings  the  former  is  to  be  pre- 
ferred.3 

The  words  "value  received"  import  a  valid  consideration.4 
And  even  in  the  case  of  a  guaranty  they  express  a  consid- 
eration sufficiently  to  satisfy  the  Statute  of  Frauds.5     But 

'Chitty  186 ;  Story  on  Prom.  Notes  g  51 ;  Clayton  v.  Gosling,  5  B.  &  C.  361 ; 
8  D.  &  R.  110. 

2Byles  88;  Chitty  186;  Chalmer's  Dig.  15;  High  more  v.  Primrose,  5  M.  & 
S.  65  (1816).  And  if  otherwise  averred  in  the  declaration  in  such  case,  it 
would  be  a  variance,  Highmore  v.  Primrose,  supra, 

3Byles  88;  Chitty  185;  Grant  v.  Da  Costa,  3  M.  &  S.  351,  Lord  Ellen- 
borough  saving  in  this  case:  "It  appears  to  me  that  'value  received'  is 
capable  of  two  interpretations,  but  the  more  natural  one  is  that  the  party 
who  draws  the  bill  should  inform  the  drawee  of  a  fact  which  he  does  not 
know,  rather  than  one  of  which  he  must  be  well  aware."  So,  Bayley,  J.,  in 
the  same  case:  "The  object  of  inserting  the  words  'value  received'  is  to 
show  that  it  is  not  an  accommodation  bill,  but  made  on  a  valuable  consid- 
eration given  for  it  by  the  payee." 

'Chitty  185;  Holliday  v.  Atkinson,  5  B.  &  C.  503;  Thatcher  v.  Dinsmore, 
5  Mass.  299  (1809) ;  Delano  v.  Bartlett,  6  Cush.  364  (1850) ;  Mandeville  v. 
Welch,  5  Wheat.  277  (1820) ;  Dugan  v.  Campbell,  1  Ohio  115  (1823) ;  Hill  v. 
Todd,  29  111.  101  (1862) ;  Hoyt  v.  Jaffray.  lb.  104;  Martin  v.  Hazard,  2  Col. 
596  (1875) ;  Sawyer  v.  Vaughan,  25  Me.*337  (1845) ;  Stevens  v.  Mclntire,  H 
lb.  14  (1836) ;  Thompson  v.  Armstrong,  5  Ala.  383  (1843) ;  Cox  v.  Slade,  2 
Dev.  8  (1828).  So,  too,  in  non-negotiable  notes,  1  Edwards  g  202.  So,  too, 
in  a  contract  for  indemnity,  Lapham  v.  Barrett,  1  Vt.  247  (1828). 

'Miller  v.  Cook,  23  N.  Y.  495  (1861);  Watson  v.  McLaren,  19  Wend. 
657  (1838) ;  Douglass  v.  Howland,  24  lb.  35  (1840) ;  Cooper  v.  Dedrick,  22 


276  FORM WORDS    RELATING   TO    CONSIDERATION. 

they  do  not,  at  least  in  a  non-negotiable  note,  import  neces- 
sarily a  cash  consideration.1  However  usual,  and  however 
important  they  were  once  thought,  they  are  at  common 
law  not  essential  to  commercial  paper,2  and,  in  the  absence 
of  statutory  requirements,  may  be  safely  omitted.  At 
common  law  all  commercial  paper  implies  a  consideration, 
although  none  be  expressed  by  these  or  other  words.3  And 
this  has  been  held  true  even  in  the  case  of  a  note  delivered 
in  a  sealed  envelope  with  request  that  it  be  not  opened  until 
the  maker's  death,  and  indorsed  with  the  words,  "Please 
accept  this  from  your  true  friend,  A.  B."*  Consideration  is 
in  like  manner  implied  between  indorsee  and  maker.5 

But  in  the  absence  of  such  words  no  consideration  is  im- 
ported for  the  signature  of  a  new  maker  added  to  the  note 
after  its  delivery.6     Nor  does  the  rule  apply,  in  Pennsyl- 

Barb.  516  (1856).  And  to  the  same  effect,  obiter,  Brewster  v.  Silence,  8  N.  Y. 
207  (1853).  Bnt  it  is  not  conclusive  so  as  to  enable  the  holder  to  recover  on 
a  naked  gift  to  him  by  the  guarantor,  Vanderveer  v.  Wright,  6  Barb.  547 
(1849). 

1Chitty  186 ;  Morgan  v.  Jones,  1  Tyrw.  21. 

2Byles  87 ;  Chitty  79,  184;  1  Daniel  117 ;  1  Edwards  \  202;  1  Parsons  193; 
Story  on  Bills  \  63;  Story  on  Prom.  Notes  \  51;  White  v  Ledwick,  4  Dong. 
427;  Grant  v.  Da  Costa.  3  M.  &  S.  351;  Popplewell  v.  Wilson,  1  Stra.  264; 
Claxtor  v.  Swift,  2  Show.  496;  Macleod  v.  Snee,  Ld.  Raym.  1481.  For  an 
early  authority  to  the  contrary,  see  Cramlington  v.  Evans,  1  Show.  5.  See, 
also,  Banbury  v.  Lisset,  2  Stra.  1212;  2  Bl.  Com.  468.  In  Germany  the  rule 
is  the  same  as  in  England  and  in  the  United  States,  Thol.  W.  R.  143.  In 
JSew  Hampshire  the  omission  of  the  words  "  value  received"  is  said  to  create 
suspicion,  Harriman  v.  Sanborn,  43  N.  H.  128  (1S61). 

3Byles  87;  Chitty  184;  1  Daniel  117;  1  Edwards  |  202;  1  Parsons  193; 
Story  on  Bills  \  63;  Story  on  Prom.  Notes  §  51 ;  Grant  v.  Da  Costa,  3  M.  & 
S.  351 ;  Mandeville  v.  W  elch,  5  Wheat.  277  (1820) ;  Underbill  v.  Phillips,  10 
.Hun  591  (1877) ;  Dean  v.  Carruth,  108  Mass.  242  (1871) ;  Townsend  v.  Derby, 
3  Mete.  363  (1841);  Hughes  v.  Wheeler,  8  Cow.  83  (1827);  President,  &c, 
Goshen  Turnpike  v.  Hurtin,  9  Johns.  217  (1812) ;  Kimball  v.  Huntington,  10 
Wend.  680  (1833) ;  Kinsman  v.  Birdsell,  2  E.  D.  Smith  395  (1854) ;  Hook  v. 
Pratt,  78  N.  Y.  371  (1879);  Hubble  v.  Fogartie,  3  Rich.  413  (1832) ;  Ken- 
dall v.  Galvin,  15  Me.  131  (1838) ;  Hanley  v.  Lang,  5  Porter  154  (1837) ;  Mat- 
lock v.  Livingston,  9  Sm.  &  M.  489  (1848);  Murry  v  Clayborn,  2  Bibb  300 
(1811) ;  Peasley  v.  Boatwright,  2  Leigh  195  (1830) ;  People  v.  McDermott,  8 
Cal.  288  (1857);  Cook  v.  Gray,  Hempst.  84  (1829).  Especially  if  the  con- 
sideration be  expressed  by  other  equivalent  words,  Bourne  v.  Ward,  51 
Me.  191  (1863).  And  a  note  without  such  words  may  be  given  in  evidence 
under  the  money  counts,  Townsend  v.  Derby,  3  Mete.  363. 

4 Dean  v.  Carruth,  108  Mass.  242  (1871).  But  see,  contra,  Harris  v.  Clark, 
3  N.  Y.  93  (1849). 

6  Mason  v.  Buckmaster,  1  111.  27  (1820). 

"Courtney  v.  Doyle,  10  Allen  122  (1865)  ;  Clopton's  Exr.  v.  Hall,  51  Mass. 
482  (1875).     And  even  where  the  note  contains  the  words  "  value  received," 


FOREIGN    STATUTES.  277 

vania,  to  a  sealed  order  for  money.1  And  it  appears  to  be 
confined  in  some  States  to  negotiable  paper.2  While  in  Iowa 
all  written  contracts  import  a  consideration,  if  signed  by  the 
maker.3  And  the  common  law  rule  on  this  subject  is 
changed  by  statute  in  some  of  the  United  States.4 

§  179.  Statutes  as  to  Consideration. — The  English  statutes 
providing  for  the  protest  of  inland  bills  of  exchange,  relate 
only  to  bills  "for  value  received,"  but  it  seems  that  protest 
of  inland  bills  was  and  still  is  unnecessary,  and  their  force, 
in  other  respects,  remains  unaltered  by  the  statutes  above 
referred  to.5  The  Coal  Act  formerly  required,  under  a 
penalty,  that  certain  notes  should  contain  the  words  "value 
received  in  coals,"  but  it  seems  that  such  notes  were  not 
rendered  invalid  by  the  omission  of  the  words.6  And  many 
foreign  statutes  require  a  particular  statement  of  the  consid- 
eration both  in  the  bill  and  in  the  indorsement.7 

if  a  new  promisor  signs  ifc  after  its  delivery,  there  must  be  evidence  of  a 
fresh  consideration,  Green  v.  Shepherd,  5  Allen  589  (1863). 

1  Sidle  v.  Anderson,  45  Penna.  St.  464  (1863). 

1  Thus,  in  Massachusetts,  an  order  payable  to  bearer,  with  no  drawer 
named,  was  held  not  to  import  a  consideration,  Ball  v.  Allen,  15  Mass.  433 
(1819).  So,  in  Connecticut,  as  to  non-negotiable  instruments,  Edgerton  v. 
Edsjerton,  8  Conn.  6  (1830) ;  but  not  if  the  instrument  be  negotiable,  Bristol 
v.  Warner,  19  Conn.  7  (1848) ;  Camp  v.  Tompkins,  9  lb.  545  (1833). 

3Jones  v.  Berryhill,  25  Iowa  289  (1868). 

*In  Arkansas  no  assignment  of  a  promissory  note  need  set  forth  the  con- 
sideration (Rev.  St.  1874  g  568).  The  words  "  value  received  "  are,  however, 
necessary  to  the  recovery  of  certain  statutory  damages  (lb.  g  556).  In  Cali- 
fornia every  signature  on  a  negotiable  instrument  "is  presumed  to  have 
been  made  for  a  valuable  consideration  "  (Civ.  Code  1872  g  8104).  Likewise 
in  Dakota  (Rev  Code  1877  g  1835).  In  Missouri  the  words  "  value  received  " 
must  be  expressed  in  a  negotiable  note  (1835  R  C.  298  |7;  1E.S.  1879  c. 
10  g  547).  So,  too,  Beatty  v.  Anderson,  5  Mo.  447  (1838) ;  Macy  v.  Kendall, 
33  lb.  164  (1862);  Stix  v.  Matthews,  63  lb.  371  (1876);  Bai-ley  v.  Sinock, 
61  lb.  213  (1875).  In  North  Carolina  negotiable  instruments  need  not  be 
expressed  to  be  for  "  value  received  "  (1873  Bat.  Rev.  c.  10  §  1).  In  Pennsyl- 
vania the  act  of  1797  (1872  Purd.  Dig.  p.  11«73  g  1)  requires  negotiable  notes 
"bearing  date  in  the  city  or  county  of  Philadelphia,"  to  be  expressly  "for 
value  in  account  or  for  value  received." 

•Chitty  375 ;  Byles  S7 ;  3  and  4  Anne  c.  9  g  4 ;  9  and  10  Wm.  III.  c.  17  g  1. 

•3  Geo.  II.  c.  26  gg  7,  8,  now  repealed ;  Wigan  v.  Fowler,  1  Stark.  463. 

'The  consideration,  e.  g.  value  received,  for  account,  &c,  as  also  the  kind 
of  consideration  must  he  expressed  in  bills,  indorsements  and  notes  by  the 
Code  Napoleon  (gg  110,  137,  188),  which  is  in  force  in  France,  Belgium,' Gen- 
eva, Greece,  Hayti,  San  Domingo  and  Turkey.  For  th.e  origin  and  construc- 
tion of  these  provisions  in  France,  see  Bedarride  Droit  Commercial  Vol.  1 
pp.  112,  458.     The  law  is  similar  in  Bolivia  (Code  Com.  1834  Art.  362);  and 


278  FORM WORDS    RELATING    TO    CONSIDERATION. 

§  180.  Effect  of  "Value  Received"— Pleading  and  Evi- 
dence.— The  words  "value  received"  are  not  in  general 
essential  to  the  negotiability  of  a  bill  of  exchange  or  prom- 

in  Italy  (Code  Com.  1865  Art.  196,  and  in  indorsements,  Art.  223).  So,  too,  in 
Brazil  (Code  Com.  1850  Afts.  354,  359),  where  a  statement  is  also  required 
of  the  person  from  whom  it  was  received  in  case  of  indorsement,  and  with- 
out such  statement  of  consideration  the  indorsement  is  merely  a  power  to 
collect  (76.  361)— although  a  blank  autograph  indorsement  properly  dated 
will  imply  both  consideration  and  transferability  (76.  362).  In  Cliill  (Code 
Com.  1865  Arts.  633,  658,  660,)  both  bill  or  note  and  indorsement  must  con- 
tain like  statement  of  consideration,  and  without  it  the  indorsement 
amounts  not  to  a  transfer  but  only  to  a  power  to  collect.  So,  drafts  and 
notes  must  contain  such  statement  (76.  771).  In  Holland  the  value,  and 
whether  received  or  to  account,  must  be  expressed  in  bills  (Exch.  Law  1838 
Art.  100)  and  notes  (76.  208),  but  not  in  drafts  (lb.  210).  In  Hungary  it  is 
unnecessary  but  may  be  added  without  harm  (Law  of  1860  \  16).  In  Mex- 
ico the  consideration,  its  kind  and  manner  of  payment,  must  be  expressed 
in  bills,  drafts,  notes,  and  indorsements  (Code  Com.  1854  \l  223,  360,  447). 
So,  too,  in  Nicaragua  (Code  Com.  1869  Arts.  241,  261)  as  to  bills  and  their 
indorsement— the  indorsement  without  such  expression  amounting  only  to 
a  power  to  collect.  The  expression  "for  value  agreed"  or  "to  account" 
makes  the  acceptor  liable  to  the  drawer.  In  Spain  (Code  Com.  1829  Art. 
426)  the  consideration,  its  kind  and  from  whom  received,  and  whether  re- 
ceived or  on  account,  must  be  expressed  both  in  bills,  indorsements  of  bills 
(76.  467),  and  drafts  and  notes  (76.  563)— and  if  for  value  agreed  or  to  ac- 
count, the  payee  is  prima  facie  liable  therefor  to  the  drawer  (76.  428).  So 
in  Colombia  (Code  Com.  1853  Arts.  384,  386,  424,  517),  Coda  Rica  (Code  Com. 
1853  Arts.  373,  375,  414.  510),  Ecuador  and  Salvador  (Code  Com.  1855  Arts. 
381,  421,  510).  In  Zurich  (Exch.  L.  1805  g  1)  the  consideration,  whether  re- 
ceived or  to  be  accounted  for,  and  in  what  manner  and  from  whom  received, 
must  be  expressed  in  bills  of  exchange.  In  Uruguay  (Code  Com.  1865  Art. 
822)  a  statement  as  to  consideration  and  from  whom  it  proceeds  is  only  re- 
quired in  indorsements,  but  a  blank  indorsement  implies  consideration  (76. 
823).  The  expressions  "value  as  agreed,"  "value  to  account,"  are  prima 
facie  evidence  of  the  acceptor's  liability  to  the  drawer  (76.  793).  In  Vene- 
zuela bills,  drafts,  notes  and  indorsements  must  express  the  considera- 
tion and  how  it  is  received  or  to  be  accounted  for  (Code  Com.  1862  Arts.  1, 
34  and  Law  II.  Art.  1),  and  in  the  absence  of  such  expression  an  indorse- 
ment has  only  the  force  of  a  power  to  collect  (76.  36).  The  consideration 
must  be  expressed  in  bills  of  exchange  and  indorsements,  as  well  as  from 
whom  it  proceeds,  and  in  what  form  and  whether  received  or  to  account,  in 
Honduras,  Guaiemala,  and  Paraguay  (Ordinances  of  the  City  of  Bilbao  a.  n. 
1774  ch.  13  U  2,  3).  The  statement  of  "  value  received  "  is  not  necessary  to 
the  regularity  of  a  bill  of  exchange  in  the  Argentine  Republic  (Code  Com. 
1862  Art.  779,  its  absence  having  no  effect  on  third  persons  and  its  expres- 
sion serving  only  to  show  prima  facie  the  relation  between  the  drawer  and 
acceptor).  In  Peru  the  consideration,  its  kind  and  how  received  or  to  be 
accounted  for  must  be  expressed  in  bills  (Code  Co-m.  1853  Art.  381),  indorse- 
ments (76.  425),  drafts  and  notes  (76.  522) — and  if  for  value  agreed  or  to  ac- 
count, the  acceptor  is  prima  facie  liable  therefor  to  the  drawer  (lb.  384).  In 
Portugal  the  consideration,  and  whether  it  has  been  received  or  is  to  be  ac- 
counted for,  must  be  expressed  by  the  words  "  value  received,"  "  value  to 
account,"  in  bills  of  exchange  (Code  Com.  1833  Art.  321),  promissory  notes 
(76.  424,  426)  and  indorsements  (lb.  355),  and  in  indorsements  it  must  also 
appear  if  the  consideration  proceeds  from  a  third  person  (76.  355),  but  value 
is  implied  in  a  blank  indorsement,  if  signed  and  dated  (76.  006).  Except 
as  above  executed,  an  indorsement  is  merely  a  power  to  collect  (76.  357) 
and  a  promissory  note  merely  evidence  of  debt  (lb.  426).     In  Russia  the 


EFFECT    OF    VALUE    RECEIVED.  279 

issory  note.1  But  they  are  required  by  statute  in  Missouri.2 
And  they  are  also  necessary  in  Missouri  to  the  recovery  of 
the  statutory  damages  on  a  bill  of  exchange.3  As  the  want 
of  such  words  does  not  in  general  affect  the  negotiability  of 
an  instrument,  so  a  full  statement  of  the  consideration  of  a 
negotiable  instrument  does  not  affect  its  negotiability.4  And 
it  is  now  well  settled  that  an  action  of  "debt"  lies  upon  an 
instrument  without  such  words.5 

In  declaring  upon  a  bill  of  exchange  or  note  no  averment 
is  necessary  that  it  contains  the  words  "value  received"  or 
their  equivalent.6  And  in  declaring  upon  an  assignment  of 
a  note,  the  averment  that  it  contains  such  words  is  immaterial 
and  need  not  be  proved.7  But  if  a  note  has  been  assigned 
without  recourse,  the  declaration  should  aver  that  the  assign- 
consideration  and  kind  of  consideration  must  be  stated  in  bills  and  notes 
(Exch.  L.  1832  Art.  541),  and  in  indorsements  ( lb.  559),  and  the  person  from 
whom  it  proceeds  may  be  added  in  the  latter  case.  In  Denmark  "  value 
received "  is  only  prima  facie  evidence  of  consideration  (Exch.  Law 
1825  i?  5).  It  must  also  appear  in  the  indorsement  and  whether  re- 
ceived or  to  account,  and  an  acknowledgment  of  consideration  without 
specifying  its  nature  implies  cash  (lb.  §  12).  In  Lower  Canada  the  words 
"value  received"  are  but  prima  facie  evidence  of  that  fact,  and  if  omitted 
the  instrument  is  not  thereby  invalidated  (Civil  Code  1867  \  2285). 

'White  v.  Ledwich,  4  Dougl.  247  (1785) ;  Creswell  v.  Crisp,  2  Cromp.  M.  & 
R  634:  Bristol  v.  Warner,  19  Conn.  7  (1848) ;  Coursin  v.  Ledlie,  31  Penna  St 
506  H858) ;  Hubble  v.  Fogartie,  3  Rich.  L.  413  (1832) ;  Kendall  v.  Galvin  15 
31  e.  131  (1838) ;  Noyes  v.  Gil  man,  65  lb.  589  (1876). 

2Ln\venstein  v.  Knopf,  2  Mo.  App.  159  (1876) ;  International  Bank  v.  Ger- 
man Bank,  3  lb.  362  (1877)  ;  Bailev  v.  Smock,  61  Mo.  213  (1875) ;  R.  C.  Mo 
1835  p  104  §  2;  Austin  v.  Blue,  6  Mo.  265  (1810) ;  Beattv  v.  Anderson.  5  lb 
447  (1838). 

3 Rev.  Code  1835  p.  298  §  7;  Riggs  v.  City  of  St.  Louis,  7  Mo.  438  (1842). 

'Doherty  v.  Perry,  38  Ind.  15  (1871) :  Newton  Wagon  Co.  v.  Diers,  10  Neb 
284  (1880). 

5Byles  88;  Chitty  185;  Story  on  Prom.  Notes  g  52;  Watson  v.  Rightly  11 
Ad.  &  El.  702;  S.  C,  3  Per.  &  D.  40S;  Hatch  v.  Trayes,  lb.  (1840).  Although 
this  was  formerly  questioned,  Bishop  v.  Young,  2  Bos.  &  P.  78-  Priddy  v 
Henbry,  3  D.  &  R.  165 ;  S.  C,  1  B.  &  C.  674. 

6Byles88;  Chitty  185,  637 ;  1  Daniel  118;  1  Edwards  \  202;  Story  on  Bills 
\  63;  Coombs  v.  Ingram,  4  D.  &  R.  211 ;  Bond  v.  Stockdale.  7  lb.  140;  Un- 
derbill v.  Phillips,  10  Hun  591  (1877)  ;  Rector  v.  Former,  1  Mo.  204  (1822); 
Richmond  v.  Patterson,  3  Ohio  368  (1828).  But  see,  contra,  Rossiter  v. 
Marsh,  4  Conn.  196  (1822).  And  where  the  words  "  for  value  received  "  in 
the  declaration  "were  used  and  intended  for  a  description  of  the  note  de- 
clared on,  and  not  as  an  averment  inserted  by  the  pleader,"  proof  of  a  note 
without  such  words  has  been  held  to  constitute  a  variance,  Saxton  v.  John- 
son. 10  Johns.  418  (1813). 

7  Wilson  v.  Codman,  3  Cranch  193  (1805). 


280  FORM WORDS    RELATING    TO    CONSIDERATION. 

ment  was  for  a  valuable  consideration.1  As  averment  of 
these  words  is  immaterial  in  a  declaration,  so  a  plea  averring 
their  absence  is  immaterial  and  will  not  support  a  convic- 
tion for  perjury.2  It  follows,  from  what  has  been  already 
said,  that  an  averment  in  a  declaration  that  the  note  was  "for 
value  received"  is  sustained  by  proof  of  a  note  not  contain- 
ing those  words  but  reciting  the  particular  consideration. a 

Notwithstanding  the  words  "value  received,"  a  want  of 
consideration  may  be  proved  between  the  original  parties.* 
And  it  has  even  been  held  that  where  a  note  purported  to 
be  "for  commission  due  for  business  transacted  for"  the 
maker,  the  maker  might  show  at  suit  of  the  payee  that  the 
real  consideration  was  services  to  be  thereafter  performed, 
which  never  had  been  performed.6  So  a  maker  may  set  up 
usury  notwithstanding  the  words  "value  received."6     As, 

1  Welch  v.  Lindo,  7  Cranch  159  (1812). 

"People  v.  McDermott,  8  Cal.  288  (1857). 

sByles  88;  Coombs  v.  Ingram,  4  D.  &  R.  211 ;  Bond  v.  Stockdale,  7  lb.  140; 
Bingham  v.  Calvert,  13  Ark.  399  (1853).  And  this  is  true  also  of  a  declara- 
tion on  a  bond,  James  v.  Scott,  7  Porter  30  (1838).  But  where  a  special  and 
particular  consideration  is  averred  in  the  declaration,  it  should  be  proved, 
infra. 

*Byles  88;  Chitty  80;  Chalmer's  Dig.  15;  1  Edwards  I  202;  1  Parsons  194; 
Story  on  Prom.  Notes  §  51  ;  Wbitaker  v.  Edmunds.  1  Ad.  &  El.  638;  Ab- 
bott v.  Hendrick,  1  Man.  &  G.  796 ;  S.  C,  2  Scott  N.  R.  183 ;  Halliday  v.  A  tkin- 
son.  5  B  &  C.  503;  Hill  v.  Buckminster,  5  Pick.  391  (1827);  Parish  v.  Stone, 
14  lb.  198  (1833);  Thacher  v.  Dinsmore,  5  Mass.  299  (1809);  Schoonmaker 
v.  Roosa,  17  Jobns.  301  (1820) ;  Litchfield  v.  Falconer,  2  Ala.  280  (1841) ;  Sny- 
der v.  Jones,  38  Md.  542  (1873);  Raymond  v.  Sellick,  10  Conn.  479  (1835); 
Sawyer  v.  Vaugban,  25  Me.  337  (1845) ;  Stevens  v.  Mclntyre,  14  lb.  14  (1836) ; 
Russell  v.  Hall,  10  Mart.  288  (La.  1830).  See,  too,  Hill  v.  Wilson,  42  L.  J.  Ch. 
817  (1873).  But  see,  contra,  Bowers  v.  Hurd,  10  Mass.  427  (1813),  where  it 
was  held  that  the  maker's  representative  was  estopped  from  denying  the 
iidmissions  as  to  consideration.  This  case  must  now  be  considered  as  over- 
ruled. In  Rideout  v.  Bristow,  1  Cromp.  &  J.  231  (1830),  1  Tyrw.  84,  however, 
an  administratrix  having  been  given  a  note  "for  value  received  from  my  late 
husband  "  was  held  to  be  estopped  from  showing  that  the  note  was  given 
only  for  indemnity  against  another  contract. 

"Abbott  v.  Hendricks,  1  Man.  &  Gr.  791  (1840) ;  S.  C,  2  Scott  N.  R.  183.  In 
this  case  it  is  said  by  Tindall,  C.  J.:  "The  distinction  seems  to  be  this: 
You  may  show  either  that  there  was  no  consideration  for  the  contract  or 
that  it  has  failed  ;  but  you  cannot  set  up  a  different  contract,  for  that  is  con- 
trary to  the  general  principles  of  the  law.  As  a  defendant  may  prove  where 
'  value  received  '  is  expressed  in  a  note,  that  there  was  no  consideration,  so 
where  a  special  consideration  is  stated,  I  think  he  is  at  liberty  to  show  that 
it  has  failed."  So  Maule,  J. :  "  The  cases  show  that  although  a  considera- 
tion is  stated  in  the  note,  you  may  prove  that  it  was  given  for  a  different 
consideration  or  without  any  consideration  at  all." 

6 Clark  v.  Sisson,  22  N.  Y.  312  (1860). 


EFFECT    OF    VALUE    RECEIVED.  281 

however,  all  commercial  paper  imports  a  consideration,  it 
follows  that  in  all  cases  where  want  of  consideration  is  made 
a  defense  the  burden  of  proof  is  on  the  defendant.1 

Defenses  as  to  the  consideration  of  a  bill  or  note,  and  its 
sufficiency,  legality  or  failure,  as  well  as  the  admissibility  of 
such  defenses  and  the  presumptions  made,  and  evidence 
required  by  law  in  such  cases,  are  more  particularly  consid- 
ered in  a  later  chapter  of  this  work. 

xChittv  80;  Story  on  Prom.  Notes  \  181;  Kinsman  v.  Birdsall,  2  E.  D. 
Smith  395  (1854) ;  Greer  v.  George,  7  Ark.  131  (1847) ;  Ware  v.  Kelly, 
22  Ark.  441  (1860);  Jerome  v.  Whitney,  7  Johns.  321  (1811).  But  if  the 
plaintiff  in  his  declaration  avers  a  special  and  particular  consideration,  he 
must  prove  it,  Jerome  v.  Whitney,  supra;  Knill  v.  Williams,  10  East  431. 


282  FORM DELIVERY  WITH  BLANKS. 


III.  BLANKS. 

181.  Blanks— Power  to  Pill. 

182.  Omissions  not  Blanks. 

183.  When  Blank  Must  be  Filled. 

184.  Blanks  in  Sealed  Bonds  and  Notes. 

185.  Particular  Blanks — Signature — Party's  Name. 

186.  Date  —Time  and  Place  of  Payment — Rate  of  Interest. 

187.  Amount — Authority  Exceeded. 

188.  Indorsements. 

189.  American  and  Foreign  Statutes. 

§  181.  Blanks — Power  to  Fill. — The  leaving  of  blanks  in 
a  contract  and  the  delivery  of  the  instrument  with  such 
blanks  create  an  agency  in  the  receiver  and  his  assigns  to  fill 
the  blanks  in  the  way  agreed  upon  or  contemplated  by  the 
maker.  And  any  departure  from  this  agreement  will  defeat 
the  right  of  such  original  holder  to  recover  upon  the  instru- 
ment. The  maker  has,  however,  held  out  the  agent  to  others 
as  clothed  with  general  powers  and  cannot  set  up  against  a 
bona  fide  holder  for  value  that  his  authority  has  been  over- 
stepped by  the  agent. 

The  authority  to  fill  a  blank  in  such  case  is  derived 
wholly,  as  will  be  seen,  from  the  implied  agency  created  by 
the  maker's  act  in  putting  the  paper  into  circulation.  With- 
out voluntary  delivery,  as  for  instance  where  the  instrument 
has  been  stolen  before  its  completion,  even  a  bona  fide  holder 
has  no  authority  to  bind  the  maker  by  filling  the  blanks.1 

^axendale  v.  Bennett,  L  R.  3  Q.  B.  D.  525  (1878) ;  Ledwick  v.  McKim,  53 
N.  Y.  307  (1873).  In  the  latter  case  this  distinction  is  made  very  clear  in 
the  language  of  Folger,  J.  (p.  314).  "The  implied  authority  is  found  in  the 
fact  of  delivery  for  use.  For  as  it  is  not  to  be  presumed  that  the  delivery 
for  use  was  meant  to  be  a  nugatory  and  unavailing  act,  and  as  it  is  apparent 
that  it  would  be,  if  the  instrument  may  not  be  perfected  before  put  to  use, 
the  law  implies  an  intention,  and  hence  an  authority,  that  he  to  whom  it  is 
thus  delivered  may  supply  all  needs  for  making  it  a  perfect  and  binding 
negotiable  instrument.  But  this  authority  is  not  implied  from  the  fact  alone 
that  the  paper  is  in  hands  other  than  those  of  him  who  is  to  be  bound,  but 
from  that  fact  joined  with  this  other  fact,  that  it  has  been  by  him  intrusted 
to  those  hands  for  the  purpose  and  with  the  intent  that  it  shall  go  into  use 
and  circulation.  *  *  *  No  authority  has  been  cited  which  decides  that 
the  maker  of  an  instrument,  negotiable  but  for  some  lack  susceptible  of 
being  supplied,  so  that  it  is  yet  imperfect,  who  has  not  by  his  own  act,  or  by 
the  act  of  another  authorized  or  confided  in  by  him,  put  it  in  circulation, 
confers  a  power  upon  even  a.  bona  fide  holder  to  supply  that  lack.  He  must 
have  been  himself  instrumental  in  its  leaving  his  possession  and  control 


il 


BLANKS.  283' 

The  delivery  of  a  bill  of  exchange,  note  or  check,  with  a 
blank  left  by  the  maker  or  drawer  in  any  part  of  it,  implies 
an  authority  to  the  holder  to  fill  it  as  he  may  please,  unless 
there  are  restrictions  apparent  on  the  face  of  the  instrument.1 
And  the  writing  of  an  acceptance  on  a  piece  of  blank  stamped 
paper  has  been  held  sufficient  evidence  of  authority  to  draw 
a  bill  for  the  amount  covered  by  the  stamp.2  In  like  manner 
a  note  may  be  written  over  a  blank  signature  given  for  that 
purpose.3  So,  too,  an  indorsement  on  blank  paper  author- 
izes the  drawing  of  a  promissory  note  to  the  order  of  such 
indorser.4  And  the  same  authority  is  implied  from  a  blank 
indorsement  on  a  printed  note  blank.5     In  such  cases  it  is 

and  passing  into  that  of  another,  and  have  been  so  with  the  purpose  of  its 
becoming  effectual  for  circulation,  or  with  some  trust  in  the  person  to 
whom  committed,  before  he  can  be  held  liable.  He  must  in  some  way  and 
for  some  purpose  have  created  an  agency  in  some  one  to  act  with  qr  to  hold 
the  paper,  and  to  find  an  authority  in  a.  subsequent  holder  to  make  perfect 
the  imperfect  paper,  this  agency  must  first  be  established." 

lByles89;  Chitty38;  1  Daniel  145;  1  Edwards  \\  88,  91;  1  Parsons  33, 
115;  Story  on  Bills  \  53;  Story  on  Prom.  Notes  g  10;  Collis  v.  Emmett,  1 
H.  Bl.  313  (1790);  Ives  v.  Farmers'  Bank,  2  Allen  236  (1861);  Androscoggin 
Bank  v.  Kimball,  10  Cush.  373  (1852)  ;  Aiken  v.  Cathcart,  3  Rich.  133;  Bank 
of  Pittsburg  v.  Neal,  22  How.  96  (1859) ;  Boyd  v.  Brotherson,  10  Wend.  93 
(1833)  ;  Mitchell  v.  Culver,  7  Cow.  336  (1827)  ;  Van  Duzer  v.  Howe,  21  N.  Y. 
351  (1860) ;  Redhch  v.  Doll,  54  lb.  234  (1873) ;  Witte  v.  Williams,  8  So.  Car. 
290  (1876) ;  Young  v.  Ward,  21  III.  223  (1859) ;  Griggs  v.  Howe,  31  Barb.  100 
(1860) ;  Abbott  v.  Rose,  62  Me.  194  (1873) ;  Bank  of  Commonwealth  v.  Curry, 
2  Dana  142  (1834) ;  Bank  of  Kentucky  v.  Garev,  6  B.  Man.  626  (1846) ;  Lisle 
v.  Rogers,  18  lb.  537  (1857) ;  Armstrong  v.  Harshman.  61  Ind.  52  (1878)  ; 
Goodman  v.  Simonds,  20  How.  343  (1857);  Green  v.  Kennedy,  6  Mo.  App. 
577  (1878) ;  McArthur  v.  McLeod,  6  Jones  475  (1859). 

2 Montague  v.  Perkins,  22  L.  J.  C.  P.  187  (1853)  ;  even  though  the  bill  was 
not  drawn  until  twelve  years  afterward,  lb.  And  the  authority  to  fill  up 
Buch  a  blank  bill  extends  to  the  administrator  of  the  original  holder,  Scard 
v.  Jackson,  34  L.  T.  (n.  s.)  65  (1876).  But  the  holder  of  such  blank  accept- 
ance cannot  fill  up  the  blank  left  for  the  drawer's  signature  after  he  has 
notice  of  the  absence  of  authority  from  the  acceptor  to  do  so,  Hogarth  v. 
Latham,  26  W.  R.  388  (1878) ;  S.  C.,  L.  R.  3  Q.  B.  D.  643. 

3Patton  v.  Shanklin,  14  B.  Mon.  15  (1S53) ;  but  so  far  as  concerns  the  in- 
terest clause  in  such  a  note,  no  authority  will  be  implied  for  more  than  legal 
interest,  and  the  excess  cannot  be  recovered,  76.  But  such  paper  cannot  be 
sealed  and  filled  up  as  a  bond.  Manning  v.  Norwood,  1  Ala.  429  (1840) ; 
Smith  v.  Carder,  33  Ark.  709  (1878). 

41  Edwards  g  88;  1  Parsons  114;  Story  on  Prom.  Notes  gg  10,  37;  Violett 
v.  Patton,  5  Cranch  151  (1809)  ;  Moody  v.  Threlkeld,  13  Ga.  55  (1853) ;  Young 
W.Ward,  21  111.  223  (1859);  Ferguson  v.  Childress,  9  Humph.  382  (1848). 
Although  the  signer  may  have  intended  to  be  bound  only  as  a  surety, 
Moody  v.  Threlkeld,  supra. 

5 Russell  v.  Langstaffe,  2  Dougl.  514  (1809),  Lord  Mansfield  in  this  case 
declaring  such  indorsement  to  be  "  a  letter  of  credit  for  an  indefinite  sum." 


284  FORM DELIVERY    WITH    BLANKS. 

immaterial  whether  a  negotiable  or  non-negotiable  note  be 
written  on  the  blank  paper.1 

But  if  a  blank  bill  form  is  signed  by  any  one  and  after- 
wards filled  out  as  a  note,  the  maker  will  not  be  liable  on  it 
at  suit  of  the  person  who  has  filled  it  up.2  Where  a  paper 
is  negligently  signed  by  one  who  mistakes  it  for  a  contract 
of  different  character,  he  will  be  liable  on  a  note  afterwards 
filled  out  above  his  signature.3  But  where  a  name  was  writ- 
ten on  a  blank  piece  of  paper  for  a  different  purpose,  e.  g.  to 
show  its  spelling,  and  the  paper  was  carried  off  against  the 
will  of  the  signer  and  filled  up  with  a  promissory  note,  it 
will  not  bind  the  signer  for  want  of  a  valid  delivery.4  There 
must  in  every  such  case  be  circumstances  from  which  an  in- 
tention to  make  a  bill  or  note  can  be  implied. 

§  182.  Omissions  not  Blanks. — This  power,  moreover,  only 
extends  to  cases  where  a  blank  has  been  left  in  the  instru- 
ment, and  does  not  include  any  authority  to  make  additions.5 

n  Daniel  149;  Orrick  v.  Colston,  7  Gratt.  189  (1850) ;  Douglass  v.  Scott,  8 
Leigh  43;  Spitler  v.  James,  32  111.  202  (1869). 

2Luellen  v.  Hare,  32  Ind.  211  (1869).  And  see,  as  to  suit  by  a  bona  fide 
holder,  Mahaiwe  Bank  v.  Douglass,  31  Conn.  170  (1862).  See,  too,  for  im- 
plied ratification  of  such  act,  Ward  v.  Williams,  26  111.  447  (1861).  And  it 
has  been  held,  in  Alabama,  that  one  signing  a  blank  paper  for  the  purpose 
of  having  a  bond  written  over  his  signature,  was  not  bound,  even  to  a  bona 
fide  holder,  for  a  promissory  note  fraudulently  written  instead  of  the  bond, 
Nance  v.  Lary,  5  Ala.  370  (1843). 

3Ross  v.  Doland,  29  Ohio  St.  473  (1876).  And  where  a  person  signed  eight 
blank  bills  of  exchange  intended  for  first  and  second  parts  of  four  separate 
bills,  the  second  parts  being  marked  "second  of  exchange,  first  unpaid,"  he 
is  liable  to  a  bona  fide  holder  if  all  are  filled  up  and  negotiated  as  distinct 
bills  for  different  amounts,  Bank  of  Pittsburgh  v.  Neal,  22  How.  96  (1859). 
As  to  negligence  in  leaving  blank  space  by  which  amount  may  be  increased, 
see  \  187,  infra. 

*1  Parsons  114;  Cline  v.  Guthrie,  42  Ind.  227  (1873).  So,  too,  where  the 
name  was  written  to  identify  a  signature,  the  note  fraudulently  written  over 
it,  was  held  to  be  a  mere  forgery,  Caulkins  v.  Whisler,  29  Iowa  495  (1870). 
So,  too,  where  the  signature  is  procured  by  fraudulent  misrepresentation 
of  the  character  of  the  paper  signed,  the  signer  not  being  guilty  of  negli- 
gence, Foster  v.  MacKinnon,  L.  R.  4  C.  P.  704  (1869) ;  Whitney  v.  Snyder,  2 
Lans.  477  (1870) ;  Walker  v.  Ebert,  29  Wis.  194  (1871). 

51  Daniel  147  ;  McGrath  v.  Clark,  56  N.  Y.  34  (1874).  So,  Coburn  v.  Webb, 
56  Ind.  100,  where  ''after  maturity"  was  added  to  the  interest  clause  with- 
out authority,  Franklin  Life  Ins.  Co.  v.  Courtney,  60  lb.  134  (1877).  So  the 
addition  of  "  bearing  ten  per  cent,  interest  after  maturity,"  Ivory  v.  Michael, 
33  Mo.  398;  or  simply  of  the  words  "  with  interest,"  Waterman  v.  Vose,  43 
Me.  504  (1857);  Kountz  v.  Hart,  17  Ind.  3213  (1861).  See,  too,  Mahaiwe 
Bank   v.  Douglass,  31  Conn.  170  (1862);    Morehead   v.   Parkersburg    Nat. 


OMISSIONS    NOT    BLANKS.  285 

Thus,  a  place  of  payment  cannot  be  inserted,  where  none  has 
been  named  nor  any  blank  left  for  it.1  And  the  words 
"with  interest  at,"  in  a  printed  form,  constitute  no  blank 
and  authorize  no  insertion  of  a  rate  of  interest.2  In  like 
manner  a  blank  implies  no  authority  to  make  an  erasure;3 
or  to  fill  in  an  unusual  provision,  such  as  a  waiver  of 
appraisement.4  But,  as  we  have  seen,  the  instrument  written 
in  the  blank  may  be  made  either  negotiable  or  non-negotia- 
ble. And  if  made  negotiable  in  disregard  of  a  verbal  agree- 
ment to  the  contrary,  it  will  still  bind  the  maker  in  the 
hands  of  a  bona  fide  holder  for  value.5     And  where,  as  in 

Bank,  5  W.  Va.  74  (1871).  So,  an  addition  of  the  words  "  or  his  order  "  in 
a  space  inadvertently  left  after  the  payee's  name  is  a  material  alteration, 
Bruce  v.  Westcott,  3  Barb.  374  (1848).  So,  in  Ives  v.  Farmers'  Bank,  2 
Allen  236  (1861),  the  following  note  was  held  to  express  a  time  of  payment 
and  the  insertion  of  the  words  in  brackets  were  held  to  be  an  addition  which 
avoided  the  note:  "Brooklyn,  Sept.  20,  1858.  [Three  months]  after  date  I 
prom,  to  pay  Dec.  23,"  &c.  But  where  an  addition  similar  to  that  in  Ivory 
v.  Mitchell,  supra,  was  subsequently  erased  in  a  public  manner,  it  was  held 
not  to  avoid  the  note,  Shepard  v.  Whetstone,  51  Iowa  457  (1879). 

JMorehead  v.  Parkersburg  Nat.  Bank,  5  W.  Va.  74.  And  such  addition 
is  prima  facie  an  alteration,  Simpson  v.  Stackhouse,  9  Penna.  St.  186  (1848) ; 
and  is  a  material  alteration,  McCoy  v.  Lockwood,  71  Ind.  319  (1880).  But 
after  the  printed  words  "  payable  at,"  a  place  of  payment  may  be  inserted, 
Marshall  v.  Drescher,  68  lnd.  359. 

2Holmes  v.  Trumper,  22  Mich.  427  (1871).     So,  a  clause  reading  "with 

per  cent,  attorney's  commissions  if  collected,"  does  not  authorize  any 

insertion  without  a  special  agreement  therefor,  and  leaves  the  note  non- 
negotiable,  Johnston  v.  Speer,  92  Penna.  St.  227  (1879). 

sl  Daniel  147;  Mahaiwe  Bank  v.  Douglass,  31  Conn.  170  (1862).  And 
where  the  drawer  fills  up  the  amount  in  several  parts  of  a  bill  marked 
"first,"  "second,"  &c,  and  delivers  them  with  blanks  for  date,  drawee  and 
payee,  an  alteration  into  distinct  bills  by  erasure  of  the  words  "first,"  "sec- 
ond," and  insertion  of  the  word  "  only  "  made  by  the  acceptor  avoids  them 
so  that  an  accommodation  indorser  cannot  recover  against  the  drawer  with- 
out proving  his  authority  for  the  alteration,  Fontaine  v.  Gunter,  31  Ala.  258 
(1857).  A  bona  fide  holder  may,  however,  strike  out  indorsements,  Moore 
v.  Maple,  25  111.  341  (1861).  But  he  cannot  strike  out  an  indorser's  name 
and  insert  it  in  a  blank  acceptance  without  discharging  a  co-indorser  who 
had  signed  the  instrument  before  the  alteration,  Mahone  v.  Central  Bank, 
17  Ga.  Ill  (1855). 

*  Holland  v.  Hatch,  11  Ind.  495  (1858).  In  Ohio,  however,  the  same  addi- 
tion was  held  to  be  an  immaterial  alteration  and  rejected  as  surplusage 
leaving  the  bill  valid,  Holland  v.  Hatch,  15  Ohio  St.  464  (1864).  See,  too, 
M>  v'Oy  v.  Lockwood,  71  Ind.  319  (1880).  But  filling  a  blank  note  up  as  a 
joint  and  several  obligation  is  no  ground  of  defense,  Bank  of  Limestone  v. 
Penick,  5  T.  B.  Mon.  25  (1821).  One  who  signs  a  blank  paper,  however,  aa 
surety  does  not  thereby  authorize  the  principal  to  write  a  note  above  it  and 
add  his  own  signature,  and  add  seals  to  both  signatures,  and  is  not  bound 
by  such  instrument,  Smith  v.  Carder,  33  Ark.  709  (1878). 

5Orrick  v.  Colston,  7  Gratt.  189  (1850);  Douglass  v.  Scott,  8  Leigh  43; 
Spitler  v.  James,  32  Ind.  202  (1869).     So,  Gillaspie  v.  Kelley,  41  Ind.  158 


286  FORM DELIVERY    WITH    BLANKS. 

Ohio,  a  seal  is  immaterial  and  the  blank  is  properly  filled, 
but  an  unauthorized  seal  is  added,  this  exceeding  of  author- 
ity will  not  vitiate  the  instrument.1  It  may  be  added  that 
the  presumption  of  authority  to  fill  a  blank  extends  to  the 
case  of  a  partnership  note  made  by  one  member  of  a  firm.2 

§  183.  When  Blank  Must  be  Filled. — It  is  laid  down  as  a 
general  rule  that  a  blank  must  be  filled  within  a  reasonable 
time ;  what  is  reasonable  being  a  question  of  fact  for  the 
jury  to  determine.3  The  blank  may  be  filled  after  the  in- 
strument has  been  transferred  by  indorsement;4  or  even 
after  its  maturity;5  or  after  the  drawer  has  become  insolv- 
ent;6 or  at  the  time  of  the  trial.7  In  fact,  title  vests  by  a 
blank  indorsement,  even  though  it  be  not  filled  up  before 
judgment  rendered.8  It  is  said,  however,  that  a  bill  of  ex- 
change with  blank  for  payee's  name  is  no  bill  until  filled  up, 
and  it  must  therefore  be  filled  before  recovery  can  be  had  on 

(1872),  filling  in  the  name  of  bank  left  blank  for  place  of  payment  and 
thereby  making  the  note  negotiable.  But  adding  words,  where  no  blank  is 
left  for  them,  which  make  a  note  payable  at  a  certain  bank  and  thereby 
render  it  negotiable,  constitutes  a  material  alteration,  Morehead  v.  Parkers- 
burg  Nat.  Bank,  5  W.  Va.  74  (1871). 

^ullerton  v.  Sturges,  4  Ohio  St.  529  (1855).  But  in  Alabama  the  unau- 
thorized addition  of  a  seal  to  the  signature  on  a  blank  piece  of  paper,  and 
the  filling  up  and  delivery  of  it  as  a  bond,  does  not  render  the  maker  liable, 
Manning  v.  Norwood,  1  Ala.  429  (1840).  So,  too,  in  Arkansas,  Smith  v.  Car- 
der, 33  Ark.  709  (1878). 

2 Chemung  Canal  Bank  v.  Bradner,  44  N.  Y.  680. 

3Temple  v.  Pullen,  8  Exch.  389  (1853) ;  Chalmer's  Dig.  24.  But  in  Mon- 
tague v.  Perkins,  22  L.  J.  C.  P.  187  (1853),  filling  the  blank  after  twelve  years 
was  held  to  bind  the  acceptor  in  blank. 

^Armstrong  v.  Harshman,  61  Ind.  52  (1878). 

5  Farmers'  and  Merchants'  Bank  v.  Horsey,  2  Houst.  3S5  (1861). 

"Fetters  v.  Muncie  Nat.  Bank,  34  Ind.  251  (1870).  But  in  Temple  v.  Pul- 
len, 8  Exch.  389  (1853),  where  a  blank  signature  on  a  note  stamp  was  given 
before,  but  not  filled  up  until  after,  bankruptcy,  it  was  held  to  constitute  a 
cause  of  action  arising  after  the  bankruptcy  and  not  discharged  therein-. 
In  Ex  parte  Bartlett,  3  DeG.  &  J.  378  (1858),  however,  a  blank  acceptance 
was  admitted  to  proof  against  a  bankrupt,  although  the  bill  had  been  drawn 
after  the  bankruptcy.  And  see,  too,  Abrahams  v.  Skinner,  12  Ad.  &  El.  763 
(1840). 

'Croskey  v.  Skinner,  44  111.  321  (1867).  Or  if  the  plaintiff  shows  himself 
at  the  trial  entitled  to  fill  such  blank,  the  actual  filling  up  may  be  dispensed 
with,  Weston  v.  Myers,  33  111.  424  (1864).  So,  a  blank  indorsement  may  be 
filled  at  the  trial,  Mitchell  v.  Mitchell,  11  Gill  &  J.  388  (1841) ;  Whiteford  v. 
Burckmyer,  1  Gill  127  (1843). 

•Rees  v.  Conococheague  Bank,  5  Rand.  326  (1827). 


WHEN    BLAXK    MUST    BE    FILLED.  287 

the  instrument.1  But  when  once  filled  up,  it  relates  back  to 
the  time  of  its  delivery.  Thus,  a  bill  delivered  in  Bavaria 
with  blanks  which  were  afterwards  filled  up  in  London  is  a 
foreign  and  not  an  inland  bill.2 

Authority  to  fill  a  blank  left  by  the  maker  ends  in  gen- 
eral with  the  maker's  life.3  The  rule  is,  however,  different 
in  the  case  of  a  blank  acceptance  coupled  with  an  interest.4 
And  a  blank  date  may  be  filled  after  the  death  of  one  of  the 
makers  of  a  partnership  note.5  So,  too,  the  amount  of  a  part- 
nership note  left  blank  may  be  filled  after  the  dissolution 
of  the  firm,  the  payee  not  having  had  notice  of  that  fact.6 

^reenhow  v.  Bovle,  7  Blackf.  56  (1843).  See,  however,  Weston  v.  Myers, 
33  111.  424  (1864) ;  Wood  v.  Wellington,  30  N.  Y.  218  (1864). 

"Barker  v.  Sterne,  9  Exch.  684  (1854);  Snaith  v.  Mingay,  1  M.  &  S.  87. 
But  see  Temple  v.  Pullen,  supra;  Goldsmid  v.  Hampton,  5  C.  B.  (n.  S.)  94 
(1858) ;  also,  Abrahams  v.  Skinner,  12  Ad.  &  El.  763  (1840),  where  the  blank 
bill  was  stamped  in  a  manner  sufficient  at  the  time  the  acceptance  was 
signed  and  insufficient  at  the  time  it  was  filled  up  and  this  was  held  to  be 
bad,  Lord  Denman,  C.  J.,  saying  of  Snaith  v.  Mingay :  "That  case  has  not, 
that  we  are  aware  of,  been  questioned,  nor  do  we  intend  to  dispute  its  author- 
ity :  at  the  same  time  we  cannot  but  say  that  the  doctrine  of  relation,  which 
is  in  no  case  to  be  favored,  appears  to  us  to  be  fraught  with  peculiar  diffi- 
culties when  applied  to  bills  of  exchange.  The  difficulty  in  the  present 
case  may  be  said  to  be  owing  to  an  unusual  circumstance,  the  change  of 
stamp:  but  under  the  most  ordinary  circumstances  it  is  calculated  to  intro- 
duce very  embarrassing  questions,  highly  unfavorable  to  the  free  and  easy 
negotiation  of  these  instruments,  if  any  doctrine  of  law  prevails  which 
makes  the  requisite  amount  of  stamp  or  the  period  of  maturity  uncertain 
Leaving,  however,  that  decision  untouched,  it  appears  to  us  that  there  is  a 
substantial  distinction  between  a  blank  drawing  and  a  blank  acceptance,  as 
regards  the  doctrine  of  relation.  The  party  who,  with  the  intention  of 
drawing  a  bill,  writes  his  name  at  the  bottom  of  the  paper,  does  a  part  of 
the  act  of  drawing;  and  when  another  person  by  his  authority  at  a  subse- 
quent period  fills  in  above  the  sum  and  date  and  the  time  of  currency,  he 
does  but  complete  the  act  which  the  party  had  begun:  when  completed  it 
is  all  one  act;  and  there  is  nothing  unreasonable,  in  the  absence  of  evidence 
of  any  contrary  intention,  in  holding  that  the  act  shall  date  from  the  time 
when  the  most  important  part  of  the  bill  was  written.  But  the  drawing  and 
acceptance  of  a  bill  are  two  distinct  acts.  The  latter  is  not  essential  to  the 
completeness  of  the  instrument.  It  may  never  be  done  at  all,  and  when 
done  there  is  no  necessity  for  their  being  concurrent  in  point  of  time,  no 
reason  for  considering  them  so  in  legal  effect  and  of  course  none  for  hold- 
ing that  acceptance  should  draw  back  to  itself  by  relation  the  time  of  draw- 
ing the  bill,  where  in  fact  it  has  preceded  it." 

"Michigan  Ins.  Co.  v.  Leavenworth,  30  Vt.  11  (1856) ;  Canal,  &c,  K.  R.  Co. 
v.  Armstrong,  27  La.  An.  433  (1875).  At  least  where  the  blank  bill  or  accept- 
ance was  given  for  accommodation  only,  Hatch  v.  Searles,  2  Sm.  &  Giff.  147 
(1854). 

'Hatch  v.  Searles,  2  Sm.  &  Giff.  147  (1854). 

BUsher  v.  Dauncey,  4  Campb.  97  (1814). 

♦Chemung  Canal  Bank  v.  Bradner,  44  N.  Y.  680  (1871). 


288  FORM — DELIVERY   WITH   BLANKS. 

§  184.  Blanks  in  Sealed  Bonds  and  Notes. — It  has  been 
generally  held,  both  in  this  country  and  in  England,  that  a 
blank  left  in  a  sealed  instrument,  which  at  common  law  was 
not  negotiable,  could,  not  be  filled  after  delivery  under  any 
such  authority  as  we  have  seen  to  be  implied  by  law  in 
the  case  of  commercial  paper.1  And  this  is  still  the  rule 
wherever  the  old  legal  distinctions  between  sealed  and  un- 
sealed instruments  are  maintained.  The  case  of  Texira  v. 
Evans,  in  which  the  contrary  was  held,  has  been  overruled 
in  England  and  very  generally  disapproved  in  this  country.2 

It  has  even  been  held  that  a  blank  left  in  a  deed  could 
not  be  filled  by  the  grantor's  agent  before  its  delivery.3   And, 

1 1  Daniel  148 ;  Hibblewhite  v.  McMorine,  6  M.  &  W.  200  (1840) ;  Enthoven 
v.  Hoyle,  13  C.  B.  373 ;  Squire  v.  Wilton,  1  H.  L.  C.  333;  Ledwich  v.  McKim, 
53  N.  Y.  307  (1873) ;  Spencer  v.  Buchanan,  Wright  583  (Ohio  1834) ;  Rhea  v. 
Gibson,  10  Gratt.  215;  Preston  v.  Hull,  23  lb.  602  (1873);  Clark  v.  City  of 
Janesville,  1  Biss.  98  (1856);  Penn  v.  Hamlett,  27  Gratt.  337  (1876);  Van 
Amringe  v.  Morton,  4  Whart.  382  (1837).  And  a  blank  cannot  be  filled  in 
a  deed  or  mortgage  of  land,  Cbauncey  v.  Arnold,  24  N.  Y.  330  (1862) ;  Ayres 
y.  Probasco,  14  Kans.  175  (1875) ;  Viser  v.  Rice,  33  Tex.  139  (1870).  But' the 
insertion  of  a  date,  in  itself  immaterial,  will  not  avoid  a  deed,  Whiting  v. 
Daniel,  1  H.  &  Munf.  391  (1807).  And  it  was  held,  in  Van  Etta  v.  Evenson, 
28  Wis.  33  (1S71),  that  a  mortgagee's  name  might  be  inserted  in  a  sealed 
mortgage  left  blank  for  that  purpose. 

2Texira  v.  Evans,  cited  in  Master  v.  Miller,  1  Anstr.  228;  since  overruled 
in  Hibblewhite  v.  McMorine,  6  M.  &  W.  200  (1840) ;  Davidson  v.  Cooper,  11 
lb.  770  (1843).  But  it  has  been  held  that  a  blank  in  a  bond  upon  a  claim 
of  property  under  execution  may  be  filled  after  delivery,  if  so  intended, 
State  v.  Dean,  40  Mo.  464  (1867).  And  a  surety  may  be  held  on  a  bond 
filled  in  after  delivery  with  his  acquiescence,  Bartlett  v.  Board  of  Education, 
59  111.  364  (1871)  ;  and  so,  in  general,  without  acquiescence  on  his  part,  State 
v.  Pipper,  31  Ind.  76  (1869) ;  Smith  v.  Crooker,  5  Mass.  53S  (1S09).  And  blank* 
left  in  a  sealed  warrant  of  attorney  filled  out  according  to  the  maker's  in- 
tention have  been  held  binding  upon  him,  Vliet  v.  Camp,  13  Wis.  198  (1860). 
In  the  case  of  the  United  States  v.  Nelson,  2  Brock.  64  (1822),  it  was  held 
that  sureties  signing  an  official  bond  or  the  printed  form  of  one  with  names 
and  penalty  in  blank  could  not  be  understood  to  have  authorized  the  filling 
of  the  blanks  and  were  consequently  not  bound  thereby;  Marshall,  C.  J., 
saying  in  this  case:  "I  say  with  much  doubt  and  with  a  strong  belief  that 
this  judgment  will  be  reversed,  that  the  law  on  this  verdict  is,  in  my  judg- 
ment, with  the  defendants.'-'  This  case  was  not  followed  in  Wisconsin  by 
Van  Etta  v.  Evenson,  28  Wis.  33  (1871),  permitting  the  name  of  the  mort- 
gagee to  be  inserted  in  a  mortgage,  in  which  a  blank  had  been  left  for  it. 
For  many  other  cases  on  both  sides  of  this  question,  see  Simms  v.  Hervey, 
19  Iowa  291  (1865) ;  City  of  Elizabeth  v.  Force,  2  Stew.  Eq.  592  note. 

3Davenport  v.  Sleight,  2  Dev.  &  B.  381  (1837) ;  McKee  v.  Hicks,  2  Dev. 
379 ;  Kime  v.  Brooks,  9  Ired.  218  (1848).  But  see,  contra,  Duncan  v.  Hodges, 
4  McCord  239  (1827) ;  and,  in  the  case  of  an  appeal  bond,  Ex  parte  Kerwin, 
8  Cow.  118  (1828) ;  also,  obiter,  McCown  v.  Wheeler,  20  Tex.  372  (1857) ;  Ex 
parte  Decker,  6  Cow.  60  (1826).  And  in  Adsetts  v.  Hives,  33  Beav.  52  (1863), 
names  and  date  in  a  mortgage  left  blank  were  filled  by  the  solicitor  before 
delivery,  and  it  was  held  that  these  parts  were  merely  formal  and  filling 
them  in  was  no  material  alteration.    ' 


BLANK SIGNATURE.  289 

a  fortiori,  after  delivery  such  blank  cannot  be  filled  up  by 
the  holder.  This  is  the  case  as  regards  a  bail-bond  condition 
left  blank.1  So,  as  to  amount  left  blank  in  a  non-negotiable 
sealed  note.2  It  has  been  held,  however,  that  a  co-obligor 
may  sign  a  sealed  bond  left  blank  for  that  purpose  without 
discharge  of  the  other  obligors,  who  had  consented  thereto.3 

An  exception  to  the  ordinary  rules  in  regard  to  sealed 
instruments  is  made  in  favor  of  "coupon  bonds"  and  other 
corporation  bonds,  negotiable  in  form  and  plainly  intended 
for  transfer  by  delivery  or  indorsement.  These  bonds,  as 
has  been  remarked  in  an  earlier  part  of  this  work,  have 
many,  if  not  all,  of  the  characteristics  of  unsealed  commer- 
cial paper.  In  such  instruments  a  blank  may  be  filled  in 
the  same  manner  and  under  the  same  restrictions  as  in  a  bill 
of  exchange  or  promissory  note.4 

§  185.  Blank — Signature — Name  of  Party. — The  rule  of 
implied  authority  in  the  holder  to  fill  blanks  in  a  bill  of 
exchange  or  note  applies  with  equal  force  to  almost  all  parts 

Lowell  v.  Duff,  SCampb.  182  (1812).  But  in  Pennsylvania  it  has  been 
held  that  a  recognizance  signed  in  blank  by  a  surety  may  afterward  have 
the  amount,  &c,  filled  up  by  the  officer,  Coster's  Appeal,  13  Penna.  St.  292 
(1850). 

'Barden  v.  Southerland,  70  K  C.  528  (1874) ;  Mosby  v.  State  of  Arkansas, 
4  Sneed  324  (1857). 

'Speake  v.  United  States,  9  Cranch  28  (1815). 

»1  Daniel  154;  White  v.  V.  &  M.  R.  R.,  21  How.  575  (1858) ;  Chapin  v.  V. 
&  M.  R.  R.,  8  Gray  575;  Gourdin  v.  Commander,  6  Rich.  497  (1852) ;  Stahl 
v.  Berger,  10  Serg.  &  R.  170  (1823) ;  Brainerd  v.  N.  Y.  &  H.  R.  R.,  25  N.  Y. 
496;  Hubbard  v.  N.  Y.  &  H.  R  R,  36  Barb.  286;  Berwick  v.  Huntress,  53 
Me.  89  (1865);  Dutchess  Co.  Ins.  v.  Hachfield.  1  Hun  675  (1874) ;  Boyd  v. 
Kennedy,  9  Vroom  146  (1875).  In  this  case,  Depue,  J.,  says:  "The  reason 
assigned  in  Hihblewhite  v.  McMorine,  for  overruling  Texira  v.  Evans,  and 
re-establishing  the  technical  rule  of  the  common  law — that  the  authority  of 
an  agent  to  fill  a  blank  in  an  instrument  under  seal,  and  thus  make  it  the 
valid  deed  of  his  principal,  must  he  conferred  by  deed — was  that  the  con- 
trary doctrine  would  make  a  deed  transferable  and  negotiable  like  a  bill  of 
exchange  or  exchequer  bill,  which  the  law  did  not  permit.  This  decision 
was  prompted  by  considerations  of  a  public  policy,  which,  it  was  supposed, 
forbid  that  obligations  under  seal  should  be  put  on  the  same  footing  as  ordi- 
nary commercial  paper,  in  their  negotiability.  A  different  opinion  of  the 
requirements  of  public  policy  is  entertained  by  the  courts  of  this  State  and 
generally  throughout  the  United  States.  *  *  *  Such  securities  by  com- 
mon usage,  sanctioned  by  the  courts,  have  obtained  the  qualities  and 
attributes  of  negotiable  paper  in  respect  to  their  transfer.  Under  such  cir- 
cumstances the  reason  on  which  Hibblewhite  v.  McMorine  is  based  is  not 
only  inapplicable,  but  is  furthermore  inconsistent  with  the  qualities  with 
which  such  paper  has  become  invested." 


290  FORM DELIVERY    WITH    BLANKS. 

of  the  instrument.  Even  the  signature  of  the  drawer  may 
be  added  after  a  blank  acceptance;1  or  of  a  co-obligor  to  a 
note  signed  in  blank.'2  And  if  a  surety  sign  a  renewal  note, 
with  the  understanding  that  it  is  to  be  signed  by  the  other 
sureties  on  the  original  note,  and  leave  a  blank  for  the  signa- 
tures of  such  sureties,  and  different  sureties  afterwards  sign 
in  such  blank,  a  bona  fide  holder  may  recover  against  all, 
even  after  altering  the  names  in  the  note  to  correspond  with 
the  signatures.3  So,  if  the  payee  named  in  a  note  indorse 
and  deliver  it  before  it  is  signed,  authority  to  insert  the 
name  of  a  maker  by  way  of  signature  will  be  implied, 
although  a  different  signature  be  obtained  than  the  one 
intended  by  the  indorser.4 

It  is  a  rule  of  commercial  paper  that  the  names  of  the  parties 
or  other  sufficient  designation  of  them  must  appear  upon  it. 
If,  however,  a  bill  of  exchange  fail  to  name  the  drawee  or 
leave  a  blank  for  his  name,  the  omission  will  be  supplied  by 
the  acceptance.5  It  has  been  held  in  England  that  a  bill  or 
note  with  the  payee's  name  blank  is  incomplete  and  cannot 
sustain  an  indictment  for  forgery.6  The  contrary  doctrine 
has,  however,  been  held  in  Indiana.7  If  the  name  of  the 
payee  be  left  blank,  the  instrument  is  in  general  equivalent 
to  one  that  is  made  payable  to  the  bearer.8     In  such  case  the 

1Moiese  v.  Knapp,  30  Ga.  942  (1860).  In  such  case  a  bona  fide  holder  may 
insert  his  own  name  as  drawer,  Harvey  v.  Cane,  24  W.  R.  400 ;  34  L.  T. 
(n.  s.)  64  (1876).  And  it  was  held,  as  we  have  seen,  that  this  might  even  he 
done  twelve  years  after  the  blank  acceptance  was  signed,  Montague  v.  Per- 
kins, 22  L.  J.  O.  P.  187  (1853).  But  without  a  drawer's  signature  such  in- 
Htrument  is  not  a  bill  of  exchange,  Stoessiger  v.  S.  E.  Railway  Company,  3 
El.  &  Bl.  549  (1854) ;  and  cannot  be  declared  on  as  such,  McCall  v.  Taylor, 
19  C.  B.  (n.  s.)  301  (1865). 

2Bank  of  Commonwealth  v.  McChord,  4  Dana  191  (1836). 

8  Jones  v.  Shelby ville  Ins.  Co.,  1  Mete.  58  (Ky.  1858). 

4  Whitmore  v.  Nickerson,  125  Mass.  496  (1878).  In  this  case  the  note  was 
made  payable  to  A.  and  indorsed  by  him  before  it  was  signed,  and  after- 
wards delivered  by  him  to  B.  for  the  signature  of  his  firm,  but  signed  and 
negotiated  by  B.  in  his  individual  name  without  A.'s  knowledge  or  author- 
ity.    A.  was  nevertheless  holden  by  reason  of  his  implied  authority  to  B. 

6  Wheeler  v.  Webster,  1  E.  D.  Smith  1  (1850). 

6 Rex  v.  Randall,  Russ.  &  Ry.  Q.  C.  195  (1811). 

T Harding  v.  The  State,  54  Ind.  359  (1876). 

81  Daniel  151 ;  Wood  v.  Wellington,  30  N.  Y.  218  (1864) ;  Cruchley  v.  Clar- 
ence, 2  M.  &  S.  91  (1813) ;  Dunham  v.  Clogg,  30  Md.  284  (1866) ;  Dinsmore 


BLANK SIGNATURE.  291. 

bill  or  note  is  not  complete  until  the  blank  is  filled  up,  but 
takes  effect  then  from  its  date,  as  if  there  had  been  no  blank.1 
Leaving  such  blank  for  the  name  of  the  payee  gives  to  any 
bona  fide  holder  for  value  an  implied  authority  to  fill  the 
blank  with  his  own  name  or  with  that  of  a  third  person.2 
And  when  so  filled,  the  maker  will  be  bound  by  it,  notwith- 
standing an  agreement  between  the  original  and  immediate 
parties  for  the  insertion  of  some  other  name  as  payee.3  Such 
a  blank  may  be  filled  after  the  note  has  been  transferred  by 
an  indorsement  in  blank.*  But  where  a  note  has  been  in- 
dorsed before  its  delivery  by  another  person  than  the  one  to 
whom  the  promise  was  originally  made,  a  subsequent  holder, 
even  though  a  bona  fide  holder  for  value,  cannot  fill  with  his 

v.  Duncan,  57  N.  Y.  573  (1874).  And  it  was  held  that  as  title  passed  by- 
delivery,  trover  would  not  lie  against  a  banker  to  whom  such  bill  had  been 
fraudulently  delivered  by  the  agent  holding  it  for  sale,  Wookey  v.  Pole,  4 
B.  &  Aid.  6. 

n  Daniel  152:  1  Edwards  g  141;  Greenhow  v.  Boyle,  7  Blackf.  56  (1843). 
But  the  actual  filling  in  of  payee's  name  in  a  due-bill  was  held  unnecessary 
in  Weston  v.  Myers.  33  111.  424  (1864) ;  especially  where  the  maker  had  also 
indorsed  the  note,  Usry  v.  Saulsbury,  62  Ga.  179  (1879).  So,  too,  in  the  in- 
dorsement of  a  note  "Pay  to  ,"  &c,  Wood  v.  Wellington,  30  N.  Y.  218 

i  1864).     So,  in  a  note  payable  "  to or  bearer,"  Rich  v.  Starbuck,  51  Ind. 

90  (1875).  As  to  such  instruments  taking  effect  by  relation  back,  see  § 
183  n. 

*Bvles  85;  1  Daniel  151;  1  Edwards  \  91 ;  1  Parsons  33;  Storv  on  Bills  \ 
56;  Story  on  Prom.  Notes  §  26;  Cruchley  v.  Clarence,  2  M.  &  S.  90  (1813) ; 
Cruchlev  v.  Mann,  5  Taunt.  529  (1814);  Rich  v.  Starbuck,  51  Ind.  87 
(1875) ;  Dinsmore  v.  Duncan,  57  N.  Y.  573  (1874) ;  Witte  v.  Williams,  8  So. 
•Car.  290  (1876);  Dunham  v.  Clogg,  30  Md.  284  (1868);  Boyd  v.  McCann,  10 
lb.  118  (1856)  ;  Sittig  v.  Birkestack,  38  Md.  158  (1873) ;  Hardy  v.  Norton,  66 
Barb.  5:27  (1S73) ;  Weston  v.  Myers,  33  111.  424  (1864)  ;  Aiken  v.  Cathcart,  3 
Rich.  133;  Farmers'  and  Merchants'  Bank  v.  Horsey,  2  Houst.  385  (1861)  ; 
Townsend  v.  France,  lb.  441  (1832) ;  Van  Etta  v.  Evenson,  28  Wis.  33  (1871) ; 
Brummel  v.  Enders,  18  Gratt.  873  (1868) ;  Stahl  v.  Berger,  10  Serg.  &  R.  170 
(1823)  ;  Elliott  v.  Chesnut,  30  Md.  562  (1869);  Greenhow  v.  Boyle,  7  Blackf. 
56  (1843);  Seav  v.  Bank  of  Tenn  ,  3  Sneed  558  (1856) ;  Bank  of  Kentucky 
v.  Garey,  6  B.  Mon.  626  (1846) ;  Schooler  v.  Tilden,  71  Mo  580  (1880).  _  But, 
with  an  alteration  of  the  date,  the  instrument  so  filled  and  altered  is  not 
binding  upon  the  maker  in  the  absence  of  express  authority  from  him, 
Bland  v.  O'Hagan,  64  N.  C.  471  (1870).  Nor  can  the  payee's  name  left  blank 
in  a  non-negotiable  sealed  note  be  filled  in  by  the  holder,  Barden  v.  Souther- 
land,  70  N.  C.  528. 

31  Daniel  147;  Wilson  v.  Kin-sev,  49  Ind.  35  (1874) ;  Huntington  v.  Bank 
of  Mobile,  3  Ala.  186  (1841) ;  Witte  v.  Williams,  8  So.  Car.  290  (1876).     A 

note  payable  to  "A.  B.  or ,"  with  a  collateral  mortgage  may  be  explained 

by  the  latter  so  as  to  show  "  bearer  "  intended,  enabling  the  assignee  of  the 
mortgage  to  sue  on  the  note,  Elliott  v.  Deason,  64  Ga.  63  (1879). 

'Armstrong  v.  Harshman,  61  Ind.  52  (1878). 


292  FORM DELIVERY  WITH  BLANKS. 

own  name  a  blank  left  for  the  payee's  name  and  thereby 
make  the  first  indorser  a  guarantor.1 

Although  the  holder  is  thus,  in  general,  permitted  to  in- 
sert his  own  name  as  payee  in  the  blank  left  for  the  payee's 
name,  he  does  not  become  thereby  one  of  the  immediate  and 
original  parties  and  has  not  the  liabilities  of  such  a  party. 
For  instance,  in  a  case  where  the  note  has  been  bought  at 
a  usurious  rate  of  interest  by  a  holder  who  fills  the  blank 
with  his  own  name,  the  maker  is  not  entitled  to  set  up  the 
defense  of  usury  against  him.2  The  omission  of  the  payee's 
name  occurs  most  frequently  in  blank  indorsements.  The 
holder  under  such  blank  indorsement  or  under  an  assign- 
ment in  blank  may  write  his  own  name  or  that  of  a  third 
person  in  the  blank.3  And  he  may  afterward  erase  the  name 
of  the  third  person  and  insert  his  own.4 

§  186.  Blank  Date — Time  and  Place  of  Payment — Rate  of 
Interest. — In  like  manner  a  blank  left  for  the  date  may  be 
filled  by  the  holder;5  and  this  may  be  done  even  after  the 
death  of  one  of  the  makers  of  a  partnership  note,  as  we  have 

1Riddle  v.  Stevens,  32  Conn.  378  (1865). 

'Bnimniel  v.  Enders,  18  Gratt.  873  (1868).  But  the  burden  of  proof  of 
such  fact  is  upon  the  holder,  as  also  the  burden  of  proving  himself  a  bona 
fide  holder  for  value  before  maturity,  Nelson  v.  Cowing,  6  Hill  336  (1844). 

"Brainard  v.  N.  Y.  &  H.  R.  R.,  25  N.  Y.  496  (1862) ;  Condon  v.  Pearce,  43 
Md.  83  (1875)  ;  Canfield  v.  Mcllvaine,  32  lb.  94  (1869) ;  Whiteford  v.  Buck- 
myer,  1  Gill   127  (1843) ;  Cheslev  v.  Taylor,  3  lb.  251  (1845) ;  Mitchell  v, 
Mitchell,  11  Gill  &  J.  388  (1841);  Jones  v.  Berrvhill,  25  Iowa  289  (1868) 
Moore  v.  Maple,  25  111.  341  (1861);  Wilder  v.  De  Wolf,  24  lb.  190  (1860) 
Palmer  v.  Marshall,  60  lb.  289  (1871) ;  Beattie  v.  Browne,  64  lb.  360  (1872) 
Moore  v.  Pendleton,  16  lb.  481  (1861) ;  Croskey  v.  Skinner,  44  lb.  321  (1867) 
Lyon  v.  Ewing,   17  Wis.  63   (1863);  Hubbard  v.  Williamson,  4  Ired.  266; 
Weirick  v.  Mahoning  Bank,  16  Ohio  St.  297  (1865);  Pace  v.  Wilmending, 
12  Bush  141  (1876).     And  see  Kentucky  statutes  1866  (G.  S.  c.  22  g  13). 
And  when  so  filled  it  passes  both  the  note  and  its  collaterals,  Farwell  v. 
Meyer,  36  111.  510  (1864).     And  the   indorsee   may  also  add  the  date  in 
filling   in  the    indorsement   as    above,    Maxwell   v.   Van   Sant,   46    111.   58 
(1867). 

4  Jones  v.  Berrvhill,  25  Iowa  289  (1868). 

51  Daniel  92,  148 ;  1  Edwards  I  88 ;  Story  on  Prom.  Notes  \\\  n.  1 ;  1  Par- 
sons 115  (but  see  also  2  lb.  552,  565) ;  Michigan  Bank  v.  Eldred,  9  Wall.  544 
(1869) ;  Pa?e  v.  Morrell,  3  Keves  117  (1866) ;  3  Abb.  App.  Dec.  433 ;  Witte  v. 
Williams.  8  So.  Car.  290  (1876) ;  Mitchell  v.  Culver,  7  Cow.  336  (1827)  ; 
Androscoggin  Bank  v.  Kimball,  10  Cush.  373  (1852) ;  Fullerton  v.  Sturges,  4 
Ohio  St.  529  (1855) ;  Shultz  v.  Payne,  7  La.  An.  222(1852);  Michigan  Ins. 
Co.  v.  Leavenworth,  30  Vt.  11  (1856).  And  in  filling  out  an  indorsement  to 
the  holder  the  date  may  be  added,  Maxwell  v.  Van  Sant,  46  111.  58  (1867). 


BLANK    DATE.  293 

seen.1  But  it  has  been  questioned  whether  this  power  of  fill- 
ing a  blank  date  extends  to  ante-dating.  And  a  note  or  bill 
ante-dated  by  any  holder  is  void  in  the  hands  of  subsequent 
holders  with  notice."'2  It  is  nevertheless  valid  in  the  hands 
of  a  bona  fide  holder  for  value  without  any  such  notice.3 

A  partial  omission  of  a  date,  where  no  blank  was  intended, 
will  be  supplied  in  all  cases  of  manifest  mistake ;  e.  g.  in  a 
case  where  the  year  was  written  "one  thousand  forty"  by 
mistake  for  1840.4  It  may  happen,  however,  where  no  date 
is  expressed  that  none  was  intended.  It  is  therefore  some- 
times said  that  a  blank  date  is  at  most  only  prima  facie  evi- 
dence of  an  authority  to  fill  it  with  any  date.5 

The  time  of  -payment  as  well  as  the  date  may  be  left  blank 
and  afterwards  filled  in  by  the  holder.6  And  if  such  blank 
is  filled  in  a  way  different  from  that  authorized  by  the  maker, 
he  will  still  be  bound  at  suit  of  an  innocent  holder.7  In 
like  manner  a  mere  omission  by  mistake  in  the  time  of  pay- 
ment will  be  supplied,  e.  g.  "in  the  (year)  of  our  Lord,"  &c.;8 

•Usher  v.  Dauncey.  4  Campb.  97  (1814). 

'1  Parsons  115;  Emmons  v.  Meeker,  55  Ind.  321  (1876);  Goodman  v. 
Simonds,  19  Mo.  106  (1853).  But  a  note  may  be  ante-dated  by  agreement, 
the  holder  rilling  the  blank  date  accordingly,  Mitchell  v.  Culver,  7  Cow.  336 
(1827). 

3  Page  v.  Morrell,  3  Keyes  117 ;  3  Abb.  App.  Dec.  433  (1866) ;  Mitchell  v.  Cul- 
ver^ Cow.  336  (1827) ;  Mechanics'  and  Farmers'  Bank  v.  Schuyler,  lb.  337  n. 

'Evans  v.  Steel,  2  Ala.  114  (1841). 

6Stout  v.  Cloud,  5  Litt.  205  (1824).  And  even  a  prima  facie  authority  has 
been  denied  in  Inglish  v.  Breneman,  5  Ark.  377  (1843)  ;  S.  C,  9  lb.  122 
(1848) ;  but  it  is  said  in  Page  v.  Morrell,  3  Keyes  117,  that  this  case  is  "  not 
supported  by  authority." 

"McGrath  v.  Clark,  56  N.  Y.  34  (1874) ;  Witte  v.  Williams,  8  So.  Car.  290 
(1876);  Fullerton  v.  Sturgps,  4  Ohio  St.  529  (1855);  Michigan  Ins.  Co.  v. 
Leavenworth,  30  Vt.  11  (1856).  So,  by  supplying  the  omission  of  the  word 
"date"  in  a  note  made  payable  "four  months  after,"  Pearson  v.  Stoddard, 
ay  199  (1857) ;  or  the  word  "  months  "  in  a  note  payable  "  twenty-four 
after  date,"  Conner  v.  Routh,  7  How.  176  (Miss.  1843);  Nichols  v.  Frothing- 
liiim.  45  Me.  22<>  (1858).  So,  by  supplying  a  reasonable  time  of  payment  in 
the  rase  of  a  blank  acceptance,  Rogers  v.  Poston,  1  Mete.  643  (Ky.  1858). 

'Waldron  v.  Young,  9  Heisk.  777  (1872) ;  Witte  v.  Williams,  8  So.  Car.  290 
(1876) ;  Elliott  v.  Levings,  54  III.  213  (1870) ;  Johns  v.  Harrison,  20  Ind.  317 
(1863). 

aHu»t  v.  Ad, mis  6  Mass.  519  (1810).  So,  the  omission  of  the  word 
"months,"  Loo  mis  v  Freer,  4  Bradw.  547  (1879) ;  McLean  v.  Nichlen,  3  V. 
L.  R  107  (1877).  But  parol  evidence  was  rejected  to  show  the  intention 
and  clear  up  the  meaning  of  a  note  payable  "in  one  from  the  first  of  Octo- 
ber in  cattle  or  in  grain  the  first  of  January  following,"  Wainwright  r.  Straw, 
15  Vt.  215  (1843 1. 


294  FORM — DELIVERY    WITH    BLANKS. 

or  "on  the  first  clay  of  March,  eighteen  (hundred  and)  sixty- 
eight."1 

The  place  of  payment  may  also  be  left  blank  and  after- 
wards filled  by  the  holder;2  although  it  has  been  held  that 
this  could  not  be  done  in  a  sealed  bond  which  had  been 
stolen  before  the  blank  was  filled.3  And  where  no  blank 
has  been  left  for  that  purpose,  there  can  be  no  implied  au- 
thority to  insert  a  place  of  payment.4  But  it  has  been  held 
that  a  blank  acceptance  authorizes  the  holder  to  write  over 
the  acceptor's  signature  a  special  acceptance  payable  at  a 
particular  place  and  that  this  act  will  not  avail  to  discharge 
an  accommodation  indorser.5 

The  rate  of  interest  also  may  be  left  blank  and  filled  in  by 
the  holder;6  although  the  payee  can  recover  in  such  case  no> 
higher  rate  than  that  agreed  on  by  the  maker.7  As  in  other 
parts  of  a  bill  or  note,  a  mere  omission  or  mistake  will  be 
supplied  to  complete  the  interest  clause,  e.  g.  an  omission  of 
the  word  "interest"  in  a  note  payable  "with  ten  per  cent."8 

§  187.  Blank  Amount — Authority  Exceeded. — Disputes  as 

1Massie  v.  Belford,  68  111.  290  (1873). 

2Redlich  v.  Doll,  54  N.  Y.  234  (1873) ;  McGrath  v.  Clark,  56  76.  34  (1874) ; 
Kitchen  v.  Place,  41  Barb.  465  (1864) ;  Waggoner  v.  Eager,  8  Hun  142  (1876) ; 
Marshall  v.  Drescher,  68  Ind.  359  (1879);  Shepard  v.  Whetstone,  51  Iowa 
457  (1879).     And  such  filling  of  a  bank  name  in  a  note  payable  "at  the 

bank,"  &c,  brings  the  note  within  the  statute  of  Indiana  requiring 

notes  to  be  payable  at  a  certain  bank  in  order  to  be  governed  by  the  lex 
mercatoria,  Gillaspiev.  Kelly,  41  Ind.  158  (1872). 

8Ledwich  v.  McKim,  53  N.  Y.  307  (1873).  And  where  the  amount  payable 
on  a  railroad  bond  depends  by  its  terms  on  the  place  of  payment  to  be  in- 
dorsed on  the  bond  by  the  president  of  the  company,  a  printed  indorsement 
for  that  purpose  signed  but  left  blank  cannot  be  filled  by  the  holder  and  the 
bond  is  non-negotiable  for  want  of  certainty  in  that  respect,  Parsons  v.  Jack- 
son, 9  Otto  434  (1878). 

4Simpson  v.  Stackhouse,  9  Penna.  St.  186  (1848);  Morehead  v.  Parkers- 
burg  Nat.  Bank,  5  W.  Va.  74. 

5Todd  v.  Bank  of  Kentucky,  3  Bush  626  (1868).  But  such  words  added 
without  the  acceptor's  authority  discharge  him,  Bnrchfield  v.  Moore,  25 
Eng.  L.  &  Eq.  123  (1854)  ;  Taylor  v.  Moselev,  6  C.  &  P.  273;  Mackintosh  v. 
Hayden,  Ry.  &  M.  362;  Desbrow  v.  Weatherley,  6  C.  &  P.  758;  Cowie  v 
Halsall,  4  B.  &  Aid.  197. 

6Visher  v.  Webster,  8  Cal.  109  (1857). 

'Fisher  v.  Dennis,  6  Cal.  577  (1858). 

8Thompson  v.  Hoagland,  65  111.  310  (1872) ;  or  "at  ten  per  cen.,"  Gramer 
v.  Joder.  lb.  314.  So  the  omission  of  the  word  "per"  will  be  cured  in  the 
phrase  "with  ten  {per)  cent,  interest  from  date,"  Williams  v.  Baker,  67  111. 
238(1873). 


BLANK    AMOUNT.  295 

to  blanks  filled  after  execution  have  arisen  most  frequently 
in  relation  to  the  amount  provided  by  the  instrument  to  be 
paid.  As  in  other  cases,  the  execution  of  a  bill  or  note  for 
a  blank  amount  implies  an  unlimited  authority  to  the  holder 
to  fill  the  blank  with  any  amount.1  A  mere  omission  by 
mistake  of  the  word  "  dollars,"  "  pounds,"  &c,  will  be,  of 
course,  supplied  as  in  other  similar  cases.2  The  authority  to 
fill  a  blank  amount  is  generally  limited,  in  England,  by  the 
amount  of  the  stamp  on  the  paper.  It  may  also  be  limited 
by  marginal  figures  on  the  paper,  in  which  case  the  figures 
must  not  be  exceeded.3  And  if  the  amount  is  made  larger 
in  the  writing,  it  will  effect  the  discharge  of  a  surety  as  an 
alteration  of  the  instrument.4     So,  tearing  off  the  marginal 

'Chittv  38;  1  Edwards  g  91 ;  1  Parsons  109;  Griggs  v.  Howe,  31  Barb.  100 
(1860) ;  Fullerton  v.  Sturges,  4  Ohio  St.  529  (1855) ;  Frazier  v.  Gains,  2  Baxt. 
92  (1872);  Hall  v.  Bank  of  Commonwealth,  5  Dana  258  (1837);  Bank  of 
Limestones.  Penick,  5  T.  B.  Mon.  25  (1821) ;  Bank  of  Commonwealth  v.  Gurry, 
2  Dana  142  (1834) ;  Frank  v.  Lilienfeld,  33  Gratt.  377  (1880).  And  a  holder 
of  such  paper  for  moneys  to  be  advanced  may  fill  it  to  the  amount  desig- 
nated by  the  marginal  figures  after  making  advances  beyond  that  sum,  Car- 
son v.  Hill,  1  McMullen  76  (1840).  And  an  indorser  before  delivery  will  be 
liable  in  such  case  to  a  payee  taking  the  note  in  good  faith,  though  the 
power  to  fill  the  blank  be  exceeded,  Diercks  v.  Roberts,  13  So.  Car.  338  (1879). 
But  if  the  amount  depends  on  the  filling  of  a  blank  for  percentage  of  attor- 
ney's commissions  to  be  specially  agreed  on,  it  cannot  be  filled  except  by  a 
subsequent  agreement  of  the  parties,  Johnston  v.  Speers,  92  Penna.  St.  227 
(1879). 

2Sweetser  v.  French,  13  Mete.  262  (1847) ;  Corgan  v.  Frew,  39  111.  31  (1865) ; 
Williamson  v.  Smith,  1  Coldw.  1  (1860) ;  Booth  v.  Wallace,  2  Root  247  (1795) ; 
Northrop  v.  Sanborn,  22  Vt.  433  (1850) ;  Murrill  v.  Handy,  17  Mo.  406  (1853). 
Especially  where  the  dollar  mark  ($)  accompanies  the  correct  figures  in 
the  margin,  McCoy  v.  Gilmore,  7  Ohio  268  (1835);  Sweelser  v.  French,  13 
.Mete  262  (1847).  So,  "  hund."  for  hundred,  Glenn  v.  Porter,  72  Lid.  525 
(1880) ;  or  "  fife  "  for  five,  Ohm  v.  Yung,  63  lb  432  (1878).  But  this  cannot  be 
done  in  a  special  bail-bond,  Spencer  v.  Buchanan,  Wright  583  (Ohio  1834). 
And  see,  contra,  as  to  a  promissory  note,  Brown  v.  Beebe,  1  D.  Chip.  227 
(1814). 

"Boyd  v.  Brotherson,  10  Wend.  93;  Norwich  Bank  v.  Hyde,  13  Conn.  279 
(1839) ;  Carson  v.  Hill,  1  McMull.  76.  And  where  the  figures  in  the  margin 
were  ''$334,"  and  the  note  was  drawn  for  "three  hundred  dollars,"  it  was 
held  that  the  blank  might  be  filled  up  to  the  amount  indicated  by  the  fig- 
ures, Clute  v.  Small,  17  Wend.  238  (1837).  But  see,  contra,  Saunderson  v. 
r.  Tiper,  5  Bing.  N.  C.  425  (1839). 

4 Henderson  v.  Bondurant,  39  Mo.  369  (1867).  But  in  Shryver  v.  Hawkes, 
-2  Ohio  St.  308  (1872),  it  was  held  that  the  marginal  figures  were  no  part  of 
a  note  and  that  the  alteration  of  them  and  the 'filling  iip  of  the  blank  for  a 
higher  amount  would  not  invalidate  the  instrument  as  to  a  surety.  This  is 
certainly  the  rule  where  the  alteration  is  made  possible  by  the  maker's 
negligence,  e.g.  where  the  amount  was  left  blank,  except  a  marginal  memo- 
randum of  "$500,"  and  this  was  altered  to  $5,000  and  the  blank  filled  for 
that  amount,  the  maker  was  held  liable  to  a  bona  fide,  holder  for  such  in- 
creased amount,  Woolfolk  v.  Bank  of  America,  10  Bush  504  (1874). 


296  FORM — DELIVERY    WITH    BLANKS. 

figures  and  filling  up  the  blank  for  a  larger  sum  amounts  to 
a  material  alteration  and  discharges  the  maker.1 

Where  negotiable  paper  has  been  executed  with  the 
amount  blank,  it  is  no  defense  against  a  bona  fide  holder  for 
value  for  the  maker  to  show  that  his  authority  has  been  ex- 
ceeded in  filling  such  blank  and  a  greater  amount  written 
than  was  intended.2  This  was  also  once  held  to  be  the  rule 
where  no  blank  had  been  actually  left,  but  the  maker  had 
negligently  left  a  space  either  before  or  after  the  written 
amount  which  made  it  easier  for  a  holder  fraudulently  to 
enlarge  the  sum  first  written.3  It  has  now,  however,  become 
in  America  an  established  rule  that,  if  the  instrument  was 
complete  without  blanks  at  the  time  of  its  delivery,  the 
fraudulent  increase  of  the  amount  by  taking  advantage  of  a 
space  left  without  such  intention,  although  it  may  be  negli- 

1  Hall  v.  Commonwealth,  5  Dana  258  (1837). 

21  Daniel  146;  1  Parsons  33,  109;  Collis  v.  Emmett,  1  H.  Bl.  313;  Russell 
v.  LangstafTe,  Dougl.  496,  514;  Snaith  v.  Mingay,  1  M.  &  S.  87 ;  Leslie  v. 
Hastings,  1  M.  &  Rv.  119;  Molloy  v.  Delves,  7  Bing.  428;  S.  C,  5  M.  &  P. 
275;  S.  C,  4  C.  &  P.  492;  Barker  v.  Stearne,  9  Exch.  684;  Van  Dnzer  v. 
Howe,  21  N.  Y.  531  (1860) ;  Griggs  v.  Howe,  31  Barb.  100  (I860) ;  Herbert  v. 
Huie,  1  Ala.  18  (1840) ;  Decatur  Bank  v.  Spence,  9  lb.  800  (1S46) ;  Hall  v. 
Bank  of  the  Commonwealtb,  5  Dana  258  (1837);  Cbemung  Canal  Bank 
v.  Bradner,  44  N.  Y.  680  (1871);  Johns  v.  Harrison,  20  Ind.  317  (1863); 
Fruzier  v.  Gains,  2  Baxt.  92  (1872) ;  McArthur  v.  MeLeod,  6  Jones  475  (1859) ; 
Smith  v.  Lockridge,  8  Bush  423  (1871) ;  Wilson  v.  Kinsey,  49  Ind.  35  (1874) ; 
Abbot  v.  Rose,  62  Me.  194  (1873) ;  Bank  of  Commonwealth  v.  Curry,  2  Dana 
142  (1834);  Bank  of  Limestone  v.  Penick,  5  T.  B.  Mon.  25  (1821');  Young 
v.  Ward,  2  111.  223  (1859) ;  Jones  v.  Sbelbwille  Ins.  Co.,  1  Mete.  58  (Kv.  1858) ; 
Nicbol  v.  Bate,  10  Yerg.  429  (1837) ;  Waldron  v.  Young,  9  Heisk.  777  (1872) ; 
Joseph  v.  National  Bank,  17  Kans.  256  (1876) ;  Huntington  v.  Bank  of  Mo- 
bile, 3  Ala.  186  (1841).  And  an  accommodation  indorser  before  delivery 
will  be  liable  in  like  manner  to  a  payee,  having  no  notice  of  the  extent 
of  his  agreement  with  the  maker,  and  taking  the  note  for  value,  Diercks  v. 
Roberts,  13  So.  Car.  338  (1879). 

3Pothier  Contrat  du  Change,  p.  1  c.  4  I  99;  Young  v.  Grote,  4  Bing.  253 
(1827),  where  blank  checks  had  been  left  by  a  banker  with  his  wife  and  the 
amount  filled  in  by  her  in  such  a  manner  that  the  clerk  with  whom  she  in- 
trusted it  was  enabled  fraudulently  to  add  £300  to  the  amount  written.  So, 
too,  Garrard  v.  Haddan,  67  Penna.  St.  82  (1870) ;  Isnard  v.  Torres,  10  La.  An. 
103  (1855).  And  this  principle  has  been  applied  to  checks  in  cases  arising 
between  banker  and  customer,  Swan  v.  North  British  Australian  Co.,  2  H. 
&C.  179;  Halifax  Union  v.  Wheelwright,  L.  R.  10  Exch.  183  (1875).  Buc 
see  a  review  of  these  cases  in  Greenfield  Savings  Bank  v.  Stowell,  123  Mass. 
196.  And  see  remarks  on  Young  v.  Grote,  in  Robarts  v.  Tucker,  16  Q.  B. 
5B0;  Bank  of  Ireland  v.  Evans  Charities,  5  H.  L.  C.  389,  410;  Orr  v.  Union 
Bank  of  Scotland,  1  Macq.  513;  British  Linen  Co.  v.  Caledonian  Ins.  Co,  4 
Macq.  107  ;  Ex  parte  Swan,  7  C.  B.  (n.  s.)  400;  Arnold  v.  Cheque  Bank,  L.  R. 
I  C.  P.  D.  578  (1S76). 


BLANK    AMOUNT.  297 

•gently,  will  constitute  a  material  alteration  and  operate  to 
discharge  the  maker.1  And  a  holder  having  notice  that  the 
maker's  authority  has  been  exceeded  cannot  recover  on  the 
instrument.2  In  Mississippi,  however,  such  holder  is  allowed 
to  recover  the  amount  actually  authorized  by  the  maker.3 
And,  in  general,  if  the  holder  knows  that  the  instrument 
was  executed  in  blank,  but  not  that  the  maker's  authority 
was  exceeded  in  filling  the  blank,  he  has  not  such  notice  as 
will  subject  him  to  defenses  on  that  ground.4  The  mere  dis- 
counting of  a  note  with  such  a  blank  raises  no  presumption 
against  the  bona  fides  of  the  holder.6 

'Goodman  v.  Eastman,  4  N.  H.  455  (1828) ;  Worrall  v.  Gheen,  39  Penna. 
St.  388  (1861) ;  Wade  v.  Withington,  1  Allen  561  (1861)  ;  Greenfield  Savings 
Bank  v.  Stowell,  123  Mass.  196  (1877).  In  this  case  Gray,  C.  J.,  says  (p.  206) 
of  Garrard  v.  Haddan,  67  Penna.  St.  82:  "  We  cannot  regard  as  authorita- 
tive the  expression  of  opinion  that  the  maker  was  liable  upon  the  note  as 
altered  for  several  reasons:  1st.  It  was  purely  extra-judicial,  for  the  plaint- 
iff had  sued  out  no  writ  of  error.  2d.  It  relies  upon  the  Scotch  decisions 
which  the  same  court,  in  Worrall  v.  Gheen,  had  declined  to  follow.  3d.  It 
avowedly  rejects  the  distinction  taken  by  this  court  in  Wade  v.  Withington, 
1  Allen  561,  above  cited,  restricting  such  liability  to  cases  in  which  the 
alteration  is  made  by  an  agent,  clerk  or  other  person  in  whom  the  maker 
has  reposed  confidence.  4th.  It  asserts  that  no  such  restriction  was  made 
in  Putnam  v.  Sullivan,  4  Mass.  45,  in  direct  contradiction  of  the  statement 
of  Chief  Justice  Parsons  in  that  case,  quoted  in  the  early  part  of  this  opin- 
ion. 5th.  It  inaccurately  states  that  Worrall  v.  Gheen  'was  a  case  of  a 
perceptible  alteration.'  whereas  that  case,  as  already  mentioned,  expressly 
found  that  'the  fraud  was  so  well  executed  that  the  appearance  of  the  note 
was  not  such  as  to  excite  the  suspicions  of  a  man  in  ordinary  business;'  and 
according  to  the  opinion  in  Phelan  v.  Moss,  67  Penna.  St.  59,  delivered  on 
the  same  day  as  that  in  Garrard  v.  Haddan,  the  only  material  question  was 
whether  the  indorsee  took  it  in  good  faith."  On  the  other  hand,  Worrall  v. 
Gheen  is  not  followed  so  far  as  it  permitted  a  recovery  of  the  original 
amount,  as  it  was  before  the  alteration,  Neff  v.  Horner,  63  Penna.  St.  327; 
Diaper  v.  Wood,  112  Mass.  315;  Citizens'  Nat.  Bank  v.  Richmond,  121  lb. 
110;  Wade  v.  Withington,  1  Allen  561. 

'Davidson  v.  Lanier,  4  Wall.  447  (1866);  Clower  v.  Wynn,  59  Ga.  246 
(1877);  Johns  v.  Harrison,  20  Ind.  317  (1863)  ;  Smith  v  Lockridge,  8  Bush 
423  (1871);  McCoy  v.  Gilmore,  7  Ohio  268  (1835);  Grant  v.  Brotherton,  7 
Mo.  458  (1842) ;  Murrill  v.  Handy,  17  lb.  406  (1853) ;  Coolbroth  v.  Purinton, 
29  Me.  469  (1849) ;  Booth  v.  Wallace,  2  Root  247  (1795). 

3Hemphill  v.  Bank  of  Alabama,  6  Sm.  &  M.  44  (1846);  Johnson  v.  Bias- 
dale,  1  Sm.  &  M.  17  (1843) ;  Goss  v.  Whitehead,  33  Miss.  213  (1857). 

♦Huntington  v.  Bank  of  Mobile,  3  Ala.  186  (1841).  But  it  was  held  in 
Awde  v.  Dixon,  6  Exch.  869  (1S51),  that  one  who  signed  a  note  with  the 
payee's  name  in  blank,  and  delivered  it  to  another  to  be  delivered  when  it 
had  been  signed  by  a  third  person,  was  not  liable  to  another  who  took  it  in 
ignorance  of  such  agreement,  which  had  not  been  carried  out,  but  with 
payee'?  name  still  blank  ;  Parke,  B.,  saying:  "  It  is  a  fallacy  to  say  that  the 
plaintiff  is  a  bona  fide  holder  for  value;  he  has  taken  a  piece  of  blank 
paper,  not  a  promissory  note." 

•Chemung  Canal  Bank  r.  Bradner,  44  X.  Y.  680. 


298  FORM — DELIVERY    WITH    BLANKS. 

§  188.  Blank  Indorsements. — Commercial  paper  may  be 
indorsed  in  blank,  at  least  by  the  law  of  England  and  of 
most  of  the  United  States.  The  meaning  of  such  contract 
by  blank  indorsement  is  fixed  by  the  mercantile  law  and  the 
implied  authority  is  to  write  such  a  contract  and  no  other. 
Thus,  the  holder  may  write  over  the  indorser's  signature  a 
promise  to  pay  the  note  according  to  its  tenor.1  Such  in- 
dorser  is  at  common  law  only  an  indorser  and  as  such  is 
entitled  to  due  notice  of  protest  of  the  bill  or  note.  And 
this  has  been  expressly  provided  by  statute  in  Massachu- 
setts.2 The  indorsee  cannot  change  this  liability  by  writing 
over  the  indorser's  signature  a  contract  of  guaranty.3  It 
seems,  however,  that  his  doing  so  will  not  make  the  indorse- 
ment void  as  a  transfer  of  the  paper.4  Nor  will  an  addi- 
tional agreement  as  to  other  matters  affect  the  indorsee's 
right  to  fill  a  blank  indorsement  with  his  name  or  that  of  a 
third  person.5  What  is  the  effect  and  meaning  of  the  con- 
tract made  by  a  blank  indorsement,  and  how  far  the  inten- 
tion of  the  parties  may  be  shown  by  parol  evidence  for  the 
purpose  of  explaining  or  modifying  such  contracts,  are  mat- 
ters to  be  discussed  in  a  later  part  of  this  work. 

§  189.  Blanks — American  and  Foreign  Statutes. — The  com- 
mon law  has  not  been  changed  by  American  statute  in  respect 

^weetser  v.  French,  13  Mete.  262  (1847). 

2  Mass.  Stat.  1874  c.  404;  Cook  v.  Googins,  126  Mass.  410.  An  indorser  in 
blank  within  two  days  after  the  first  delivery  of  a  note  has  been  held  in 
Massachusetts  as  an  original  promisor,  Moies  v.  Bird,  11  Mass.  436  (1814). 
But  such  original  promise  cannot  be  inferred  from  a  blank  indorsement 
nine  months  after  date,  Tenney  v.  Prince,  4  Pick.  386  (18%). 

3Seabury  v.  Hungerford,  2  Hill  80  (1841);  Hall  v.  Newcomb,  7  lb  416 
(1844),  overruling  Nelson  v.  Dubois,  13  Johns.  175  (1816)  :  Beattie  v.  Browne, 
64  111.  360  (1S72) ;  Schnell  v.  North  Side  P.  M  Co.,  89  lb.  5S1  (1878) ;  Howe 
v.  Merrill,  5  Cush.  80  (1849).  But  see,  contra,  as  between  the  original  par- 
ties, Worden  v.  Salter,  90  111.  160  (1878),  Sheldon,  J.,  dissenting;  Clayes  v. 
White,  65  lb.  357  (1872) ;  Chandler  v.  Westfall,  30  Tex.  475  (1867) ;  Fuller  v. 
Scott,  8  Kans.  25  (1871).  See,  also,  Tenney  v.  Prince,  4  Pick.  386  (1826); 
Moies  v.  Bird,  11  Mass.  436  (1814).  And  where  the  indorsement  was  made 
after  the  maturity  of  a  note  and  for  the  purpose  of  guaranteeing  it,  the 
holder  may  write  a  guaranty  over  the  indorser's  signature,  Rivers  v. 
Thomas,  1  B.  J.  Lea  649  (1878). 

4Croskey  v.  Skinner,  44  111.  321  (1867);  Beattie  v.  Browne,  64  111.  360 
(1872) ;  Hance  v.  Miller,  21  111.  636  (1859)— but  in  this  case  it  was  held  that 
the  insertion  of  the  guaranty  itself  was  not  prima  facie  unauthorized. 

6Leland  v.  Parriott,  35  Iowa  454  (1872). 


BLANKS — AMERICAN    AND    FOREIGN    STATUTES.  2991 

to  blanks.  It  has  in  part  become  statute  law  in  a  few  of  the 
States.1  On  the  other  hand,  it  seems  that  the  many  foreign 
statutes,  referred  to  in  other  parts  of  this  work,  requiring 
commercial  paper  to  be  dated  and  to  express  amount,  names, 
time  and  place  of  payment,  <fcc,  amount  to  a  prohibition  of 
blanks  in  the  several  particulars  required  to  be  expressed.2 
Blanks  as  to  the  payee's  name  are  provided  for  by  statute  in 
the  Argentine  Republic  and  in  Lower  Canada.3  Blank 
indorsements  are  prohibited  by  statute  in  most  of  the  coun- 
tries that  follow  the  Spanish  Commercial  Code;4  or  the  Code 
Napoleon.5  In  some  other  countries  they  are  permitted — 
sometimes  restricting  the  efficacy  of  a  blank  indorsement  to 
a  mere  power  of  attorney  to  collect  the  bill.6 

xIn  California  "one,  who  makes  himself  a  party  to  an  instrument  in- 
tended to  be  negotiable,  but  which  is  left  wholly  or  partly  in  blank  for  the 
purpose  of  filling  afterwards,  is  liable  upon  the  instrument  to  an  indorsee 
thereof  in  due  course  in  whatever  manner  and  at  whatever  time  it  may  be 
filled,  so  long  as  it  remains  negotiable  in  form  "  (Civ.  Code  1872  \  8125).  In 
Dakota  the  same  provision  is  made  (Rev.  Code  1877  \  1854).  In  Kentucky 
the  holder  of  a  promissory  note  payable  to  the  maker's  own  order  and  in- 
dorsed by  the  maker  in  blank  may  fill  the  blank  indorsement  with  a  fresh 
promise 'to  pay  (1877  G.  S.  c.  22  \  13)-. 

2 In  Russia  blanks  on  stamped  paper  are  expressly  forbidden  (1832  Exch. 
Law  Art,  542). 

3If  the  payee's  name  is  left  blank  any  bona  fide  holder  may  insert  his  own, 
in  the  Argentine  Republic  (Code  Com.  1862  Art.  776),  or  may  fill  it  with  the 
name  of  another  in  Lower  Canada  (1867  Civ.  Code  \  2282). 

4Blank  indorsements  are  forbidden  in  Spain  (1829  Code  Com.  Art.  471); 
Colombia  (1853  Code  Com.  Art.  428) ;  Costa  Rica  (1853  Code  Com.  Art.  418) ; 
Ecuador  (see  Spanish  Code)  ;  Mexico  (1854  Code  Com.  Art.  364) ;  Peru  (1853 
Code  Com.  Art.  429). 

5The  Code  Napoleon  requires  all  indorsements  to  state  the  name  of  the  in- 
dorsee (§  137).  This  law  applies  to  Belgium,  France,  Greece,  Hayti.  Turkey 
and  the  Canton  of  Geneva.     So,  too,  in  Italy  (1865  Code  Com.  Art.  223). 

6 Indorsement  in  blank  is  permitted  by  statute  in:  Brazil  (Code  Com. 
1850  Art.  362) ;  Chili  (Code  Com.  1865  Art.  661),  in  which  case  and  notwith- 
standing want  of  date  the  indorsement  implies  consideration  and  effects  a 
transfer;  Denmark  (Act  1843  §  2).  So,  too,  in  Russia,  but  such  indorsements 
cannot  prove  themselves  (1832  Exch.  Law  Art.  560).  Regular  indorsements 
must  contain  name  of  indorsee  and  time  and  place  of  indorsement  {lb. 
559).  So,  too,  in  Switzerland  (Basle,  Law  of  1863  \  12;  Berne,  Law  of  1859  § 
12;  and  many  other  cantons).  In  these  places  a  blank  indorsement  may 
be  filled  by  the  holder,  but  the  instrument  can  be  further  indorsed  and 
transferred  without  that.  In  Hungary  a  blank  indorsement  is  a  mere  power 
of  attorney  for  collection  (1860  Exch.  Law  \  34) ;  but  when  once  filled  up 
the  indorser  cannot  set  up  in  defense  that  it  was  blank  when  delivered  (lb. 
\  35).  In  Portugal  a  blank  indorsement  without  date  is  a  mere  power  to 
collect  (1833  Code  Com.  Art.  357).  This  is  also  the  case  in  Venezuela,  unless 
it  he  proved  to  have  been  intended  for  a  transfer  of  the  instrument  (1862 
Code  Com.  Art.  36). 


300       FORM MEMORANDA  AND  AGREEMENTS. 


IV.  MEMORANDA  AND  CONTEMPORANEOUS  AGREEMENTS. 

190.  Memoranda  on  Back,  Margin,  &c. 

191.  Expressing  a  Condition/ 

I'.)-.  Relating  to  Time  of  Payment. 

193.  Place  of  Payment. 

194.  Amount — Marginal  Figures. 

1 95.  Currency — Consideration — Interest. 

196.  Collaterals. 

197.  Contemporaneous  Agreements. 

199.  How  far  Admissible. 

§  190.  Memoranda  on  Back,  Margin,  &c. — It  often  becomes 
an  important  question  whether  a  memorandum  made  upon 
the  margin,  back,  bottom,  or  other  part  of  a  note  or  bill,  is 
part  of  the  instrument.  It  is  said  by  Mr.  Justice  Byles,  in 
his  work  on  bills,  that  such  a  memorandum  made  before  the 
completion  of  a  bill  by  delivery  is  sometimes  a  part  of  it 
and  sometimes  not.1  If,  however,  such  memorandum  was 
made  at  or  before  the  execution  of  the  instrument,  it  is  gen- 
erally held  to  be  a  part  of  it;2  unless,  indeed,  it  is  a  mere 
memorandum  placed  on  the  paper  by  way  of  ear-mark.3 

The  circumstances  of  the  making  of  such  a  memorandum 
are  a  question  of  fact  for  the  jury  to  determine;4  and  parol 
evidence  is  admissible  as  to  such  facts,  although  the  memo- 
randum is  prima  facie  contemporaneous  with  the  instrument 
and  forms  part  of  it.5  But  this  has  been  held  to  be  other- 
wise in  the  case  of  a  memorandum  on  the  back  of  a  note, 
until  proof  was  furnished  of  its  being  contemporaneous  with 

1  Byles  155.     See,  too,  Chitty  162. 

21  Daniel  156;  2  Parsons  539;  Dinsmore  v.  Duncan,  57  N.  Y.  573;  Bene- 
dict v.  Cnwclen,  49  lb.  396  (1872);  Heywood  v.  Perrin,  10  Pick.  228  (1830); 
Shaw  v.  M.  E.  Society,  8  Mete.  223  (1844)  ;  Fletcher  v.  Blodgett,  16  Vt.  26 
(1844) ;  Falkenburgh  v.  Clark,  11  R.  I.  278  (1876) ;  Wilson  v.  Tucker,  10  lb. 
578  (1873) ;  Farmers'  Bank  v.  Ewing,  78  Ky.  264  (18S0) ;  Cushing  v.  Fifield, 
70  Me.  50  (1879);  Tnrnbull  v.  Thomas,  1  Hughes  C.  C.  172  (1875);  Wood- 
ward v.  Matthews,  15  Ind.  339  (I860);  Corgan  v.  Frew,  39  111.  31  (1865); 
Johnson  v.  Heagan,  23  Me.  329  (1843);  Polo  Mfg.  Co.  v.  Parr,  8  Neb.  379 
(1879);  Krouskop  v.  Shontz,  51  Wis.  204  (1881). 

3  Byles  101;  Chitty  163;  1  Daniel  159;  Brill  v.  Crick,  1  M.  &  W.  232.  A 
receipt  for  part  payment  and  a  memorandum  of  protest  made  are  not  part 
of  a  note  and  need  not  be  included  in  a  copy  contained  in  the  pleadings, 
Buhl  v.  Trowbridge,  42  Mich.  44  (1879). 

*Tuckerman  v.  Hartwell,  3  Me.  147  (1824). 

5  Fletcher  v.  Blodgett,  16  Vt.  26  (1844). 


MEMORANDA    EXPRESSING    A    CONDITION.  301 

the  execution  of  the  note.1  And  if  the  memorandum  was 
made  after  the  execution  of  the  instrument,  it  forms  no  part 
of  it.2 

§  191.  Memoranda  Expressing-  a  Condition. — The  memo- 
randum is  none  the  less  a  part  of  the  note  because  its  effect 
is  to  render  its  payment  contingent,  provided  it  be  contempo- 
raneous with  the  note.3  This  is  true  of  a  condition  written 
below  the  note  on  the  same  paper,  and  its  alteration  avoids 
the  instrument.4  In  like  manner,  a  memorandum  on  the 
back  of  a  note,  "on  condition  that  if  any  dispute  shall  arise 
respecting  the  fir,  the  note  to  be  void,"  is  part  of  the  note 
and  renders  it  contingent  and  non-negotiable.5  So,  a  memo- 
randum on  the  end  of  a  note  providing  that  "this  note  is 
subject  to  a  contract  made  November,  1874." 6  So,  a  memo- 
randum under  the  signature  that  the  note  is  not  to  be  paid, 
if  a  certain  machine  be  not  delivered,  forms  part  of  the  note.7 
Likewise  a  memorandum  rendering  the  payment  dependent 
on  a  certain  contingency  ;8  or  a  memorandum  below  the  sig- 
nature that  the  note  is  not  to  be  sued  until  a  certain  time.9 

In  like  manner  a  statement  printed  on  the  margin  of  a 
note  to  the  effect  that  it  was  given  for  a  patent  and  was  not 
to  be  paid  until  a  certain  specified  profit  was  obtained,  is  part 
of  the  note ;  but  an  alteration  made  by  cutting  it  off  was 
held  to  be  no  defense  to  the  maker,  at  suit  of  a  bona  fide 
holder,  by  reason  of  the  maker's  negligence  in  the  matter.10 
Again,  where  one  of  the  makers  of  a  note  added  to  his  sig- 

»Bay  v.  Shrader,  50  Miss.  326  (1874). 

2Byles  101  ;  Stone  v.  Metcalfe,  1  Stark.  53;  S.  C,  4  Campb.  217;  33  and  34 
Vict.  c.  97  \  7. 

3Byles  100;  2  Parsons  517,  539;  Story  on  Prom.  Notes  24;  at  least  be- 
tween the  original  parties,  1  Edwards  \  161. 

4Gerrish  v.  Glines,  56  N.  H.  9  (1875). 

5  Hartley  v.  Wilkinson,  4  M.  &  S.  25 ;  S.  C,  4  Campb.  127. 

•dishing  v.  Fifield,  70  Me.  50  (1879). 

'Wait  v.  Pomeroy,  20  Mich.  25  (1870).  So,  in  like  position,  a  memoran- 
dum that  the  note  shall  be  considered  paid  "when  B.  sells  $50  worth"  of 
certain  machines,  State  v.  Stratton,  27  Iowa  420  (1869). 

•Henry  v.  Colman,  5  Vt.  402  (1833). 

9  Franklin  Savings  Inst.  v.  Reed,  125  Mass.  365  (1878). 

"Zimmerman  v.  Rote,  75  Penna.  St.  188  (1874). 


302  FORM MEMORANDA    AND    AGREEMENTS. 

nature  the  words  "surety  ninety  days  from  date,"  these  words 
were  held  to  form  part  of  the  note.1  But  an  agreement  by 
the  payee  not  to  sell  the  note,  indorsed  on  it,  has  been  held 
not  to  be  a  part  of  the  note  and  not  to  affect  au  indorsee's 
right  to  recover  on  it.2  So,  a  memorandum  on  the  back  of 
a  note  expressing  the  payee's  desire  that  indulgence  should 
be  given  to  the  maker,  is  not  a  part  of  the  note  and  does  not 
constitute  a  condition.3 

§  192.  Memoranda  as  to  Time  of  Payment. — Memoranda 
qualifying  a  note  or  bill  relate  frequently  to  the  time  limited 
for  its  payment.  Such  a  memorandum  as  to  when  the  note 
falls  due  may  correct  an  erroneous  date;4  or  may  render  the 
time  of  payment  contingent,  e.  g.  a  memorandum  on  the 
back  of  the  note,  "  when  a  dividend  on  said  estate  shall  be 
declared,"  is  construed  as  part  of  it.5  So,  a  like  memoran- 
dum "  not  to  compel  payment  but  to  receive  when  conveni- 
ent."6 And  the  mere  word  "renewed"  indorsed  on  a  note 
has  been  held  to  have  similar  effect  as  part  of  the  note.7 
But  an  indorsement  of  the  words  "  to  be  extended  if  desired 
by  the  makers,"  although  part  of  the  note,  has  been  rejected 
as  indefinite  and  immaterial.8 

A  memorandum  at  the  bottom  of  a  note,  "  not  to  be  col- 
lected until  T.  takes  it  up,  as  the  maker  has  paid  said  T.  for 
the  same,"  is  a  part  of  it  and  postpones  its  payment.9  So,  a 
memorandum  in  the  same  position  to  the  effect  that  the 
maker  is  "  not  to  be  compelled  to  pay  said  note  before  April 

■Ulmer  v.  Reed,  11  Me.  293  (1834). 

2Leland  v.  Parriott,  35  Iowa  454  (1872). 

3Chitty  163;  Stone  v.  Metcalfe,  1  Stark.  53;  S.  C,  4  Campb.  217;  33  and 
34  Vict.  c.  97  %  7. 

4Bvles  101 ;  Fitch  v.  Jones,  5  El.  &  Bl.  238;  Fanshawe  v.  Peets,  2  Hurlst.  & 
N.  1." 

5Effinger  v.  Richards,  35  Miss.  540  (1858). 

6 Barnard  v.  Cushing,  4  Mete.  230  (1842). 

7  Lime  Rock  Bank  v.  Mullett,  34  Me.  547  (1854).  But  a  similar  indorse- 
ment, on  an  envelope  containing  the  note,  not  signed,  is  no  part  of  the  note, 
Central  Bank  v.  Willard,  17  Pick.  151  (1835). 

8Krouskop  v.  Shontz,  51  Wis.  204  (1881). 

•Johnson  v.  Heagan,  23  Me.  329  (1843). 


MEMOKANDA  AS  TO  PLACE  OF  PAYMENT.      303 

l;"1  or  a  memorandum  on  the  back  postponing  payment 
""until  the  old  mill  is  sold  for  a  fair  price;"2  or  relieving 
from  the  payment  of  the  principal  as  long  as  the  interest  is 
paid;3  or,  on  the  back  of  a  negotiable  municipal  bond  pay- 
able in  twenty-nine  years,  making  it  due  on  default  of  inter- 
est coupons;4  or,  on  the  back  of  a  note,  "to  be  paid  when 
A.  collects  a  certain  note  of  B.  ;"5  or,  at  the  bottom  of  a  note, 
"  one-half  payable  in  twelve  months,  the  balance  in  twenty- 
four  months."6  But  where  such  memorandum  is  in  conflict 
with  the  tenor  of  a  note  and  also  with  itself,  e.  g.  the  note  being 
dated  September  13th,  payable  four  weeks  from  date,  with  the 
memorandum  at  the  bottom,  "due  Oct.  12,  Oct.  11,"  it  was 
rejected  as  repugnant  and  held  to  form  no  part  of  the  note.7 
§  193.  Memoranda — As  to  Place  of  Payment. — Such  mem- 
orandum is  also  frequently  made  to  designate  a  place  of  pay- 
ment or  indicate  a  change  in  the  place  named  in  the  bill  or 
note.  Thus,  a  memorandum  at  the  bottom  of  a  bill  in  the 
words  "Accepted  to  pay  in  Boston,  A.  F.  Howe  &  Co.,"  was 
held  to  indicate  the  office  of  A.  F.  Howe  &  Co.,  in  Boston, 
as  a  place  of  payment  and  was  construed  as  part  of  the  bill.8 
So,  a  marginal  memorandum,  "Payable  at  the  Bank  of 
America,"  has  been  held  to  form  a  part  of  the  note,  and  the 
addition  of  such  a  memorandum  after  the  delivery  of  the 
note  was  held,  therefore,  to  constitute  a  material  alteration 
of  the  paper.9     Such  a  memorandum,  however,  pointing  out 

franklin  Saw  Inst.  v.  Keed,  125  Mass.  365  (1878). 

2  Blake  v.  Coleman,  22  Wis.  396  (1868). 

sOskaloosa  College  v.  Hickock,  46  Iowa  237  (1877). 

4 Mayor,  &c,  v.  City  Bank,  58  Ga.  584  (1877).  So,  a  like  provision  in  a 
mortgage  securing  a  note  payable  on  its  face  in  five  years,  Noell  v.  Gaines, 
68  Mo.  649  (1878) ;  Parks  v.  Cooke,  3  Bush  168  (1867). 

5McCalla  v.  McCalla,  48  Ga.  503  (1873). 

6Heywood  v.  Perrin,  10  Pick.  22S  (1830);  Wheelock  v.  Freeman,  13  lb. 

165  (1832). 

7  Way  v.  Batchelder,  129  Mass.  361  (1880),  Ames,  J.,  saying,  p.  362 :  "  Such 
a  memorandum  is  repugnant  and  self-contradictory,  and  for  that  reason  it 
is  not  to  be  considered  as  a  part  of  the  contract  or  sufficient  to  contradict 
the  terms  used  in  the  body  of  the  note." 

"Tuckerman  v.  Hartwell,  3  Me.  147  (1824). 

'Woodworth  v.  Bank  of  America,  19  Johns.  391  (1821). 


304  FORM MEMORANDA    AND    AGREEMENTS. 

the  place  of  payment  has  been  held  in  England  not  to  be 
part  of  the  instrument.1  And  this  has  been  held  to  be  the 
rule  in  a  recent  case  in  Missouri,  also.2 

§  194.  Memoranda  of  Amount — Marginal  Figures. — Mar- 
ginal figures  indicating  an  amount  are  frequently  used,  and, 
as  has  been  seen,  are  sometimes  required  by  statute.  They 
avail  to  explain  what  is  clearly  an  omission,  e.  g.  of  the  word 
"pounds"  or  "dollars";3  but  are  always  controlled  by  the 
words  naming  the  amount  in  the  body  of  the  instrument,  if 
there  is  a  discrepancy.4  Such  figures  are  frequently  used 
in  giving  a  bill  or  note  for  a  blank  amount,  their  purpose 
being  to  limit  the  holder's  authority  as  to  the  filling  in  of  the 
blank.  In  some  cases  these  figures  are  held  to  be  a  part  of 
the  note,  and  erasing  or  tearing  them  off  amounts,  in  such 
case,  to  an  alteration  of  the  instrument.5  In  such  case,  fill- 
ing the  blank  with  a  larger  amount  constitutes  an  alteration, 
discharging  a  surety  who  had  delivered  the  paper  with  the 
marginal  figures  and  the  blank.6  It  has  been  held,  how- 
ever, that  such  figures  are  no  part  of  the  note  and  that 
their  alteration  is  not  material.7 

§  195.  Memoranda — As  to  Currency  and  other  Means  of 
Payment — Consideration — Interest. — The  currency  or  other 
means  of  payment  is  sometimes  indicated  by  a  memorandum 
of  the  sort  already  described,  and  such  memorandum  in 
general  forms  part  of  the  instrument.  This  is  true  of  the 
words  "  foreign  bills  "  written  at  the  bottom  of  a  note,  de- 
stroying its  negotiability.8     So,  of  the  words  "  in  facilities  " 

'Exon  v.  Russell,  4  M.  &  S.  505. 

2  American  Nat.  Bank  v.  Bangs,  42  Mo.  450  (1868). 

8  McCoy  v.  Gilmore,  7  Ohio  268  (1835) ;  Sweetser  v.  French,  13  Mete.  262 
(1847) ;  Corgan  v.  Frew,  39  111.  31  (1865). 

4Mears  v.  Graham,  8  Blackf.  144  (1846).  For  foreign  statutes  to  like  effect, 
see  Chap.  IV..  supra.  In  Iowa,  marginal  figures  alone  are  not  sufficient  to 
support  a  recovery  at  law,  Hollen  v.  Davis,  59  Iowa  444  (1882). 

5 Hall  v.  Bank  of  Commonwealth,  5  Dana  258  (1837). 

•Henderson  v.  Bondurant,  39  Mo.  369  (1867). 

'Shryver  v.  Hawkes,  22  Ohio  St.  308  (1872) ;  Woolfolk  v.  Bank  of  Amer- 
ica, 10  Bush  504  (1874) ;  Smith  v.  Smith,  1  R.  I.  398  (1850). 

"Jones  v.  Fales.  4  Mass.  245  (18081. 


MEMORANDA  AS  TO  CURRENCY.  305 

written  under  the  signature  ;x  or,  "  to  be  paid  in  notes  of  the 
Bank  of  Kentucky,"  written  across  the  end  ;2  or,  "  to  be  paid 
in  wheat  at  ninety-five  cents  a  bushel,"  written  on  the  back;3 
or,  "  payable  in  fulled  cloth  one  year  from  the  month  of 
October  next,"  written  on  the  margin.4 

In  like  manner,  the  memorandum  may  indicate  the  con- 
sideration of  the  note  or  the  fund  provided  for  its  payment. 
Thus,  a  memorandum  under  the  signature,  "  to  be  paid  from 
profits  of  machines  when  sold,"  is  a  part  of  the  note.5  Al- 
though it  was  held,  in  an  early  case  in  New  York,  that  a 
contemporaneous  indorsement  showing  the  consideration  of 
the  note  formed  no  part  of  it.6  But  it  is  said  that  where  a 
memorandum  of  this  sort  provides  for  payment  in  a  certain 
way,  e.  g.  "  in  labor,  if  made  within  six  months,"  the  provi- 
sion expires  with  the  limitation,  and  payment  not  having 
been  made  in  that  manner  within  the  time  limited,  the  pro- 
vision is  not  afterwards  a  part  of  the  note.7 

Another  common  use  of  such  memorandum  is  to  provide 
for  interest  or  for  the  periodical  payment  of  interest.  Thus, 
the  words  "  with  lawful  interest,"  written  on  the  corner  of  a 
note  at  the  time  of  its  execution,  form  part  of  it.8  And  the 
subsequent  addition  of  a  provision  for  interest  to  be  paid 
semi-annually,  written  on  the  face  of  a  note,  is  a  material 
alteration.9  But  a  memorandum  written  below  the  signature 
by  the  payee,  in  the  words  "  when  due,  to  draw  fifteen  per 
cent.,"  has  been  held  to  be  no  part  of  the  note,  in  the  absence 
of  evidence  as  to  when  it  was  made.10 

Springfield  Bank  v.  Merrick,  14  Mass.  322  (1817). 

"Osborne  v.  Fulton,  1  Blackf.  231. 

3 Polo  Mfg.  Co.  v.  Parr,  8  Neb.  379  (1879). 

4 Fletcher  v.  Blodgett,  16  Vt.  26  (1844). 

5Benedict  v.  Cowden,  49  N.  Y.  396  (1872). 

'Sanders  v.  Bacon,  8  Johns.  485  (1811).  The  authority  of  this  case  has 
been  questioned,  so  far  as  it  holds  the  memorandum  to  be  no  part  of  the 
note,  Benedict  v.  Cowden,  49  N.  Y.  396  (1872). 

'Odiorne  v.  Sargent,  6  N.  H.  401  (1833). 

•Warrington  v.  Early,  2  El.  &  Bl.  763.  And  the  writing  of  such  memo- 
randum in  the  corner  of  a  note  constitutes  a  material  alteration,  lb. 

'Dewey  v.  Reed,  40  Barb.  17  (1863). 

10Knowles  v.  Hill,  25  111  288  (1861). 

U 


306  FORM MEMORANDA    AND    AGREEMENTS. 

§  196.  Memoranda  as  to  Collaterals. — Memoranda  of  this 
sort  to  the  effect  that  collateral  security  has  been  given  have 
been  held  in  England  to  form  no  part  of  a  bill  or  note.1 
But  in  Massachusetts  such  a  memorandum  is  part  of  the 
note;2  although  it  cannot  be  construed  as  a  notice  to  the 
holder  of  any  agreement  between  joint  makers  or  between 
maker  and  indorser  for  the  deposit  of  such  collaterals.3 

So,  too,  a  marginal  memorandum,  that  the  note  is  "  given 
as  collateral  security  with  agreement,"  is  part  of  the  note, 
and  renders  it  contingent  and  non-negotiable,  so  that  an 
indorsee  cannot  bring  suit  upon  it.4  On  the  other  hand,  in 
England  a  similar  provision  on  the  back  of  the  note,  "  for 
securing  floating  advances  with  lawful  interest,  commissions, 
&c,"  although  part  of  the  instrument,  is  held  to  be  an  agree- 
ment requiring  an  agreement  stamp.5  But  in  an  early  case 
in  New  York,  no  longer  followed,  such  a  memorandum,  indi- 
cating that  a  note  was  given  as  security  for  accommodation 
acceptances  and  was  to  be  void  if  the  drawer  paid  the  bills 
accepted,  was  held  not  to  be  part  of  the  note ;  and,  although 
itself  conditional,  the  note  in  question  was  held  to  be  a  nego- 
tiable one.6  The  following  memorandum  on  the  back  of  a 
paper  has  also  been  held  to  form  a  part  of  it,  being  executed 
contemporaneously  with  it :  "And  the  within  note  is  taken 
for  security  for  all  such  balances  as  J.  M.  may  happen  to 
owe  T.  L.,  not  extending  further  than  the  within  named  sum 
of  two  hundred  pounds,  but  this  note  is  to  be  in  force  for 
six  months  and  no  money  allowed  to  be  called  for  sooner  in 
any  case."7 

So,  too,  a  printed  waiver  on  the  back  of  a  note  of  preseut- 

'Byles  101 ;  Wise  v.  Charlton,  4  Ad.  &  El.  786;  S.  C,  6  Nev.  &  M.  364;  S. 
C,  2  Har.  &  W.  49;  Fancourt  v.  Thorne,  9  Q.  B.  312. 

2 Shaw  v.  M.  E.  Society,  8  Mete.  223  (1844). 

3Fitchburg  Sav.  Bank  v.  Rice,  124  Mass.  72  (1878). 

«Costelo  v.  Crowell,  127  Mass.  293  (1879). 

5Cholmley  v.  Darley,  14  M.  &  W.  344. 

•Tappan  v.  Ely,  15  Wend.  362  (1836).  So  far  as  Tappan  v.  Ely  held  such 
memorandum  to  he  no  part  of  the  note  its  authority  was  questioned  in 
Benedict  v.  Cowden,  49  N.  Y.  396. 

'Leeds  v.  Lancashire,  2  Cam  ph.  205. 


CONTEMPORANEOUS    AGREEMENTS.  307 

ment,  protest  and  notice  of  dishonor.1  And  an  indorsement 
in  these  words :  "  This  note  is  held  by  me  for  a  note  of  B.," 
describing  it,  amounts  to  a  notice  to  all  purchasers  that  it  is 
held  merely  as  a  collateral.2 

§  197.  Contemporaneous  Agreements. — Commercial  paper 
is  sometimes  to  be  construed  as  one  instrument  with  contem- 
poraneous agreements  executed  on  separate  paper.  This  is 
so  at  least  as  to  the  original  parties  and  all  parties  with  notice 
of  such  agreement.3  Thus,  a  contemporaneous  parol  agree- 
ment, which  is  executed  and  not  executory,  may  be  construed 
with  a  note  so  as  to  defeat  it.4 

A  collateral  mortgage,  executed  contemporaneously  with 
a  note,  may  be  in  general  construed  as  one  instrument  with 
it;5  especially  if  it  be  a  mortgage  executed  to  secure  the  note, 
referring  in  the  body  of  it  to  the  note  as  payable  according 
to  the  tenor,  &c.6  And  where  a  note  is  made  payable  in 
four  years  with  interest,  not  specifying  when  the  interest  is 
to  be  paid,  and  a  contemporaneous  mortgage  securing  it  pro- 
vides for  the  payment  of  interest  annually,  the  two  will  be 
construed  together,  and  the  interest  will  be  payable  on  the 
note  annually.7  So,  where  several  notes  maturing  at  different 
times  are  all  secured  by  a  contemporaneous  trust  deed,  which 
by  its  provisions  postpones  the  maturity  of  all  the  notes  until 
the  last  of  them  falls  due,  the  instruments  will  be  construed 
together.8  So,  an  agreement  in  a  contemporaneous  collateral 
mortgage,  exempting  from  liability  all  other  property  of  the 

farmers'  Bank  v.  Ewing,  78  Ky.  264  (1880). 
2 National  Security  Bank  v.  McDonald,  127  Mass.  82  (1879). 
sl  Edwards  \  164. 

4Crosman  v.  Fuller,  17  Pick.  171  (1835).  And  see,  in  general,  Davis  v. 
Brown,  4  Otto  423  (1876) ;  Davidson  v.  Hill,  27  La.  An.  149  (1875). 

5Noell  v  Gaines,  68  Mo.  649  (1878);  Parks  v.  Cooke,  3  Bush  168  (1867); 
Muzzy  v.  Knight,  8  Kans.  456  (1871);  National  Bank  v.  Peck,  lb.  661; 
Richardson  v.  Thomas,  28  Ark.  387  (1873). 

6Dol>hins  v.  Parker,  46  Iowa  357  (1877).  And  such  mortgage  may  be 
treated  as  a  duplicate  note,  on  which  an  action  will  lie  after  the  Statute  of 
Limitations  has  barred  the  note,  Grinnell  v.  Baxter,  17  Pick.  386  (1835). 

'Meyer  v.  Graeber,  19  Kans.  165  (1877). 

•Brownlee  v.  Arnold,  60  Mo.  79  (1875). 


308       FORM — MEMORANDA  AND  AGREEMENTS. 

maker  of  the  note,  forms  one  contract  with  the  note.1     So,  a 

note  made  to  "A.  or ,"  may  be  explained  by  a  collateral 

mortgage  to  be  intended  for  A.  or  bearer.2 

§  198.  In  like  manner  a  note  given  for  an  insurance  pre- 
mium will  be  construed  with  a  contemporaneous  receipt 
showing  that  fact;3  or  with  a  like  receipt  providing  for  the 
surrender  of  the  note  on  a  certain  contingency.4  And  the 
maker  of  a  note,  at  suit  of  an  indorsee  taking  it  after  ma- 
turity, may  avail  himself  of  a  contemporaneous  agreement 
rendering  the  payment  of  the  note  conditional.5  So,  when 
a  note  is  made  "subject  to  certain  conditions  contained  in  a 
written  agreement  of  this  date,"  the  note  and  agreement  will 
be  construed  as  one  contract.6  So,  a  note  for  property  pur- 
chased and  a  contemporaneous  agreement  that  the  title  shall 
not  pass  until  the  note  is  paid.7  So,  a  contemporaneous 
stipulation  under  seal  for  the  conditional  payment  of  the 
note  out  of  the  proceeds  of  a  certain  mine;8  or  a  note  pay- 
able one  day  after  date,  with  a  contemporaneous  writing  pro- 
viding for  payment  in  five  years;9  or  a  contemporaneous 
verbal  agreement  for  the  payment  of  a  note  in  work;10  or  in 
hides;11  or  in  rent.12  So,  a  contemporaneous  agreement  by  a 
married  woman  charging  her  separate  estate.13 

§  199.  Contemporaneous  Agreements — When  Admissible. — 

Richardson  v.  Thomas,  28  Ark.  387  (1873). 

2Elliott  v.  Deason,  64  Ga.  03  (1879). 

3 Lawrence  v.  Griswold,  30  Mich.  410  (1874). 

4 Hunt  v.  Livermore,  5  Pick.  395  (1827). 

5Munro  v.  King,  3  Col.  238  (1877);  Rogers  v.  Broadnax,  24  Tex.  538 
(1859). 

6Titlow  v.  Hubbard,  63  Ind.  6  (1878). 

'Third  Nat.  Bank  v.  Armstrong,  25  Minn.  531  (1878). 

8 Goodwin  v.  Nickerson,  51  Cal.  166  (1875). 

9And  in  such  case  the  Statute  of  Limitations  will  not  begin  to  run  until 
the  expiration  of  the  five  years,  Round  v.  Donnel,  5  Kans.  54  (1869). 

10Singer  Mfg.  Co.  v.  Haines,  36  Mich.  385(1879);  Weeks  v.  Medler,  20 
Kans.  57  (1878). 

11  Hill  v.  Huntress,  43  N.  H.  4S0  (1862).  So,  an  indorsement  "to  be  paid 
in  wheat,"  Polo  Mfg.  Co.  v.  Parr,  8  Neb.  379  (1879). 

12  Bradley  v.  Marshall,  54  111.  173  (1870). 

"Sherwood  v.  Archer,  10  Hun  73  (1877).  So,  too,  Treadwell  v.  Archer,  76 
N.  Y.  196  (1879),  reversing  10  Hun  73  on  other  grounds. 


CONTEMPOKANEOUS    AGREEMENTS.  309 

In  like  manner,  where  a  note  is  made  by  one  partner  to 
another,  it  may  be  shown  by  a  contemporaneous  agree- 
ment to  have  been  given  to  secure  the  payee  against  half  the 
loss  of  the  partnership  capital,  and  recovery  by  him  will  be 
thereby  limited  to  the  amount  of  loss  sustained.1  But  such 
contemporaneous  agreement,  to  constitute  one  contract  with 
the  note  or  bill,  must  be  between  the  same  parties.  Thus,  a 
note  by  a  contractor  to  A.,  payable  on  the  completion  of  a^ 
building,  will  not  be  affected  by  a  contemporaneous  agree- 
ment between  the  contractor  and  the  county  for  payment  on 
its  completion  "  according  to  the  plan  and  specification  on 
file,"  and  the  fact  that  the  building  was  completed  on  another 
plan  constitutes,  therefore,  no  defense  to  the  note.2  Neither 
can  a  contemporaneous  agreement  be  used  to  contradict  and 
so  defeat  a  note,  e.  g.  by  showing  that  a  note  payable  to  the 
administrator  of  A.  was  not  to  be  paid,  but  was  to  be  applied 
in  satisfaction  of  a  debt  of  A.  to  the  maker.3 

On  the  other  hand,  a  contemporaneous  verbal  agreement 
is  admissible  to  show  a  failure  of  consideration  between  origi- 
nal parties  or  parties  with  notice.4  In  Colorado  it  has  been 
held  that  a  contemporaneous  agreement  set  up  in  defense  to 
a  note  or  bill  must  be  alleged  to  be  in  writing.5  A  contem- 
poraneous agreement  for  the  discontinuance  of  a  certain  suit 
on  payment  of  costs,  although  construed  with  a  note,  does 
not  amount  to  a  condition  precedent  to  the  payment  of  it.8 
Neither  does  a  contemporaneous  warrant  of  attorney,  al- 
though construed  with  a  note,  avail  as  an  extension  of  the 
Statute  of  Limitations  on  the  note.7 

Rogers  v.  Smith,  47  N.  Y.  324  (1872). 
'Levally  v.  Harmon,  20  Iowa  533  (1866). 
'McDonald  v.  Elfes,  61  Ind.  279  (1878). 
♦Smith  v.  Carter,  25  Wis.  283  (1870). 
6Peddie  v.  Donnelly,  1  Col.  421  (1872). 
•Bruce  v.  Carter,  72  N.  Y.  616  (1878). 
nValrod  v.  Manson,  23  Wis.  393  (1868). 


310  FORM ADDITIONAL   STIPULATIONS. 


V.    ADDITIONAL   STIPULATIONS. 

200.  Stipulations  for  Interest — Exchange. 

201.  as  to  Charging  Account,  Returning  Certificate, 

Waiving  Protest,  &c. 

202.  as  to  Collaterals. 

203.  Consideration. 

204.  Manner  of  Payment. 

205.  Attorney's  Fees. 

207.  Warrant  to  Confess  Judgment. 

208.  Other  Agreements. 

§  200.  Provisions  for  Interest — Exchange. — All  definitions 
of  commercial  paper  include  the  requirement  that  it  shall  be 
for  the  payment  of  money  only.  Instruments  providing  for 
such  payment  and  other  objects  may  be  valid  as  agreements, 
but,  in  the  absence  of  statutes  to  that  effect,  are  not  to  be 
construed  as  negotiable  and  commercial  instruments.  Some 
additions,  however,  do  not  change  the  character  of  the  paper 
by  providing  for  any  other  act  than  the  payment  of  money, 
and  additions  of  this  sort  do  not  affect  its  negotiability  or 
commercial  character. 

The  most  common  addition  of  this  kind  is  a  clause  pro- 
viding for  the  payment  of  lawful  interest.  An  instrument 
containing  such  clause  may  still  be  a  valid  bill  of  exchange.1 
In  Austria  such  a  clause  does  destroy  the  negotiable  charac- 
ter of  a  bill,  note,  indorsement  or  other  commercial  contract.2 
While  in  Germany  the  clause  itself  is  of  no  avail,  and  the 
bill  or  note  is  not  affected  by  it.3 

Another  common  addition,  not  in  general  affecting  the 
negotiability  of  a  bill  of  exchange,  is  a  provision  for  exchange 
between  the  place  of  drawing  and  the  place  of  payment.4 
Such  a  provision  is  valid,  at  least,  if  it  be  not  used  as  a  sub- 

1  Warrington  v.  Early,  2  El.  &  Bl.  763  (1853). 

^Austria  (1858  Ordinance  No.  2). 

s  Germany  (1861  Nuremb.  Nov.  No.  4). 

♦Johnson  v.  Frisbie,  15  Mich.  286  (1867) ;  Smith  v.  Kendall,  9  lb.  241 
(1861);  Leggett  v.  Jones,  10  Wis.  34  (1859);  Sperrv  v.  Horr,  32  Iowa  184 
(1871);  Grutacap  v.  Wouluise,  2  McLean  581  (1841).  The  contrary  was, 
however,  held  in  Read  v.  McNultv,  12  Rich.  445  (1860) ;  Lowe  v.  Bliss, 
24  111.  168  (1860);  Russell  v.  Russell,  1  MacArth.  263  (1874). 


COMMON    PHRASES    AS    TO    CHARGING.  311 

terfuge  to  evade  the  usury  laws.1  But  if  so  used  it  will  be 
void.2 

§  201.  Common  Phrases  as  to  Charging,  Waiver,  Return  of 
Certificate,  &c. — Another  ordinary  and  immaterial  addition 
to  a  bill  of  exchange  is  a  request  to  charge  the  same  to  the 
account  of  the  drawer  or  of  some  other  person.  Such 
request  will  not  affect  the  negotiability  of  the  bill.3  And 
a  statement  that  the  drawer  will  credit  the  payment  in 
a  particular  way  or  on  a  particular  account  is  likewise  im- 
material.4 

In  certificates  of  deposit  the  sum  of  money  named  is  fre- 
quently made  payable  on  return  of  this  certificate,  and  their 
negotiability  is  not  affected  by  this  provision.5  But  it  would 
be  if  the  provision  also  included  the  return  of  the  maker's 
guaranty  or  of  some  other  paper.6 

Where  a  maker,  after  the  usual  words  of  promise  in  his 
note,  added  the  words  "  which  I  am  truly  thankful  for  and 
shall  never  be  forgotten  by  me,"  the  instrument  was  held  to 
be  a  negotiable  note  notwithstanding-  this  addition.7  In  like 
manner  the  expression  "  ne  varietur  "  common  in  Louisiana 
notes,  does  not  affect  their  negotiability.8  Other  phrases  fre- 
quently made  use  of  in  bills  of  exchange,  without  any  effect 
upon  the  negotiability  of  the  paper,  are  the  following :  "In 
case  of  need  apply  to  Messrs.  A.  B.,  at  C. ;"  "  Return  with- 
out  protest;"  "As  per  advice."     So,  expressions   fixing  a 

lChurchman  v.  Martin,  54  Ind.  380  (1876). 

2  Cornell  v.  Barnes,  26  Wis.  473  (1870). 

'Mehlberg  v.  Fisher,  24  Wis.  607  (1869) ;  Planters'  Bank  v.  Evans,  36  Tex. 
592  (1872) ;  Petillon  v.  Lorden,  86  111.  361  (1877).  But  an  order  for  payment 
<mt  of  a  particular  fund,  "And  this  shall  l>e  your  warrant  for  so  doing  and 
good  as  my  receipt  for  said  money,"  has  been  held  to  be  interpreted  as  a 
mere  non-negotiable  receipt  as  sbown  on  its  face,  Harriman  v.  Sanborn,  43 
N.  H.  128  (1861). 

♦Early  v.  McCart,  2  Dana  414  (1834). 

5 Frank  v.  Wessels,  64  N.  Y.  155  (1876),  overruling  Patterson  v.  Poindex- 
ter,  6  \V:ltts  &  S.  227  ;  Cate  v.  Patterson,  25  Mich.  191  (1872). 

■Srailie  v.  Stevens,  39  Vt.  315  (1866). 

7  Ellis  v.  Mason,  2  Hill  295  n. ;  S.  C,  1  Eng.  Jur.  380. 

•Fleckner  v.  Bank  of  United  States,  8  Wheat.  338  (1823);  Bank  of  Ken- 
tucky v.  Goodale,  20  La.  An.  50  (1868) ;  Maskell  v.  Haifleigb,  8  lb.  457  (1853) ; 
Nutt  v.  Watson,  11  lb.  664  (1856). 


312  FORM — ADDITIONAL    STIPULATIONS. 

limit   to   the   amount  of  exchange  or   expenses   assumed.1 
There  are  also  some  statutory  provisions  on  this  subject.2 

§  202.  Phrases  Referring  to  Collaterals. — Another  addition 
frequently  occurring  in  bills  and  notes  and  not  affecting  their 
negotiability,  is  the  mention  or  recital  of  collateral  security.3 
So,  in  like  manner,  a  recital  of  collateral  with  a  power  of  at- 
torney authorizing  its  sale  on  non-payment  of  the  note 
secured,  has  been  held  not  to  affect  its  negotiability.4  And 
even  a  promise  coupled  with  such  provisions  and  an  agree- 
ment to  pay  any  deficiency  arising  after  such  sale,  has  been 
held  to  leave  the  note  still  negotiable.5  In  Texas  a  recital 
of  a  collateral  security  on  real  estate  appears  to  entitle  the 
note  containing  it  to  a  decree  of  foreclosure  like  a  mortgage.6 
But  it  has  been  held  that  a  stipulation  contained  in  a  bill  of 
exchange,  for  the  delivery  of  cotton  to  the  acceptors,  was  in- 

1  Chitty  186, 189.  So,  a  waiver  of  relief  from  appraisement  and  exemption 
laws  will  not  destroy  the  negotiability  of  a  note,  Lyon  v.  Martin,  81  Kans. 
411  (1884). 

2  In  California  a  non-negotiable  option  to  perform  some  act  in  lieu  of  pay- 
ment may  be  added  without  prejudice  to  the  negotiability  of  an  instrument 
(Civ.  Code  of  1872  g  8090).  So,  too,  "  a  negotiable  instrument  may  contain 
a  pledge  of  collateral  security  with  authority  to  dispose  thereof"  {lb.  \  8092), 
but  "  must  not  contain  any  other  contract  than  such  as  is  specified  "  above 
(76.  \  8093).  In  Dakota  the  same  provisions  have  been  enacted  (Rev.  Code 
1877  U  1824,  1826,  1827).  In  Pennsylvania  the  statute  provides  that  all  bills  of 
exchange,  notes,  drafts,  &c,  made  or  indorsed  in  Pennsylvania  payable 
elsewhere,  "  with  the  current  rate  of  exchange  in  Philadelphia  or  such  other 
place  within  this  Commonwealth  where  the  same  may  bear  date,  or  in  cur- 
rent funds  or  such  like  qualifications,"  shall  be  negotiable  (1849  P.  L.  p. 
427  I  11 ;  1872  Purd.  Dig.  p.  1173  |  2). 

3Byles  11 ;  2  Parsons  147  ;  Wise  v.  Charlton,  4  Ad.  &  El.  786  ;  Fancourt  v. 
Thome,  9  Q.  B.  312  (1846) ;  Branning  v.  Markham,  12  Allen  454  (1866).  So, 
Collins  v.  Bradbury,  64  Me.  37  (1874),  where  the  note  was  said  to  be  for  a 
a  colt,  which  was  "  holden  for  the  payment  of  the  amount.''  So,  where  the 
note  contains  a  statement  that  it  is  secured  by  deed  of  real  estate,  Duncan 
v.  Louisville,  13  Bush  378  (1877).  So,  too,  Heard  v.  Dubuque  Co.  Bank,  8 
Neb.  10  (1878) ;  Potts  v.  Coal  Co.,  6  Phila.  249  (1867) ;  Knipper  v.  Chase,  7 
Iowa  145;  Towne  v.  Rice,  122  Mass.  67  (1877).  But  a  recital  in  a  note  that 
it  was  "given  as  collateral  security  with  agreement"  has  been  held  to 
destroy  its  negotiability,  so  that  an  indorsee  cannot  sue  on  it  in  his  own 
name,  Costello  v.  Crowell,  127  Mass.  293  (1874). 

'Arnold  v.  Rock  River  V.  R.  R.,  5  Duer  207  (1856) ;  Towne  v.  Rice,  122 
Mass.  67  (1877) ;  Haynes  v.  Beckman,  6  La.  An.  224  (1851). 

BArnold  v.  Rock  River  V.  R.  R.,  5  Duer  207  (1856);  First  Nat.  Bank  v. 
Gray,  18  So.  Car.  282  (1882). 

6Slade  v.  Young,  32  Tex.  668  (1870). 


CLAUSES    RELATING   TO  CONSIDERATION.  313 

tended  for  their  security  only,  and  did  not  enure  to  the  benefit 
of  subsequent  holders.1 

§  203.  Additional  Clauses  Relating  to  Consideration. — The 
recital  in  a  note  or  bill  of  the  consideration  supporting  it,  is 
another  common  addition  not  affecting  its  negotiability.2 
Where  the  consideration  is  in  the  nature  of  an  executory 
agreement,  e.  g.  a  promise  to  pay  A.  a  certain  sum  for  a  suit 
of  clothes  ordered  by  B.,  the  instrument  is  not  a  promissory 
note.3 

On  the  other  hand,  the  recital  of  an  executed  considera- 
tion, however  full,  will  not  destroy  the  character  of  the 
paper  as  a  note.  Thus,  a  promise  "in  consideration  of  his 
foregoing  and  forbearing  an  action  for  damages,  ascertained 
by  consent  to  amount  to  that  sum,  by  reason  of  injuries  sus- 
tained by  his  wife  in  respect  of  my  non-repair  of  a  foot-way," 
may  still  be  a  good  promissory  note.4  So,  a  recital  in  a  bill 
of  exchange,  "which  is  due  me  for  the  wagon  bought  last 
Spring,"  leaves  it  still  a  bill  of  exchange.5  So,  in  a  premium 
note  for  insurance  the  words,  "On  policy  No.  33,"  will  not 
•affect  its  negotiability,  although  the  policy  provided  for  a 
set-off  of  the  note  against  any  loss  that  might  occur.6  So, 
too,  the  statement  in  a  note  that  it  is  given  "towards  the 
right  of  way  and  grading  of  said  railroad,"  is  immaterial;7 

'Ware  v.  City  Bank,  59  Ga.  840  (1877). 

"Collins  v.  Bradbury,  64  Me.  37  (1874) ;  Kirk  v.  Dodge  Co.  Mut.  Ins.,  39 
Wis.  138  (1875) ;  Preston  v.  Whitney,  23  Mich.  260  (1871) ;  Union  Ins.  v. 
Greenleaf,  64  Me.  123  (1874);  Wallace  v.  Dyson,  1  Speers  127  (1804); 
Doherty  v.  Perry,  38  Ind.  15  (1871).  And  a  note  for  $40  "  profits  "  has  been 
construed  to  refer  to  profits  growing  out  of  some  past  transaction  and  to  be 
negotiable,  Matthews  v.  Crosby,  56  N.  H.  21  (1875). 

"Jarvis  v.  Wilkins,  7  M.  &  W.  410.  But  where  a  note  provided  that  the 
contents  were  "to  be  appropriated  to  the  payment  of  A.'s  mortgage  to  B.," 
and  the  mortgage  was  afterwards  paid  in  another  manner,  the  note  was 
held  to  be  negotiable,  Treat  v.  Cooper,  22  Me.  203  (1842).  So,  where  an 
order  for  a  safe  contained  a  promise  to  pay  for  it  a  certain  amount  at  a  cer- 
tain time,  it  was  held  to  be  a  note  within  the  Revised  Statutes  of  Maine, 
Morris  v.  Lynde,  73  Me.  88  (1881). 

4Shenton  v.  James,  5  Q.  B.  199  (1843).  So,  a  note  reciting  that  it  was  given 
as  a  "  part  payment  on  the  plantation  as  per  agreement  of  February  14th, 
74,"  lias  been  held  to  be  negotiable,  Bank  of  Sherman  v.  Apperson,  4  Fed. 
Rep.  25  (1880). 

5  Wells  v.  Brigham,  6  Cash.  6  (1850). 

"Taylor  v.  Curry,  109  M:iss.  36  (1871). 

'Wright  v.  Irwin.  33  Mich.  32. 


314  FORM — ADDITIONAL    STIPULATIONS. 

or  in  consideration  of  a  judgment  to  be  assigned;1  or  evem 
the  statement  "which  when  paid  will  be  in  full  of»a  judg- 
ment," &c.2  So,  a  clause  stating  that  the  note  is  given  "to 
satisfy  an  attachment  against  A.  B.,  whose  receipt  will  be- 
good  against  said  due-bill."3  So,  a  statement  to  the  follow- 
ing effect,  "being  in  part  payment  for  a  portable  engine, 
which  engine  shall  be  and  remain  the  property  of  the  owner 
of  this  note  until  the  amount  hereby  secured  is  fully  paid."4 

Some  of  these  cases,  however,  appear  to  overstep  the  line 
of  a  mere  recital  of  consideration.  On  the  other  hand,  it 
has  been  held  that  an  agreement  for  the  purchase  of  a  saw- 
gin  "for  which  I  promise  to  pay,"  &c,  is  plainly  not  a  prom- 
issory note.5  And  in  Louisiana  a  bill  of  exchange  contain- 
ing the  words  "according  to  a  donation  made  to  the  parish, 
the  same  to  be  in  accordance  with  a  resolution  of  the  police 
jury,"  was  held  to  be  conditional  and  therefore  not  nego- 
tiable.6 

§  204.  Agreements  as  to  Manner  of  Payment. — The  fol- 
lowing agreements,  though  seeming  to  add  somewhat  to  the 
simple  contract  made  by  the  note,  have  been  held  not  to 
render  it  conditional  nor  to  affect  its  negotiability  in  any 
way,  e.  g.  a  note  for  the  payment  of  money  "  or  in  goods  on 
demand."7  So,  too,  a  note  containing  an  alternative  "to 
issue  stock  for  it"  on  its  surrender.8  But  a  note  for  the 
payment  of  money,  concluding  with  the  clause  "for  which  I 
am  to  receive  stock  of  said  company,"  has  been  held  to  be 
an  agreement  and  not  a  negotiable  note.9  On  the  other 
hand,  a  note  for  money,  with  the  provision  that  "  it  may  be 

'Sanders  v.  Bacon,  8  Johns.  485  (1811). 
-Ellett  v.  Britton,  6  Tex.  229  (1851). 
3  Bowie  v.  Foster,  Minor  264  (1824). 
4Mottv.  Havana  Nat.  Bank,  22  Hun  354  (1880). 
5 Hodges  v.  Hall,  5  Ga.  163  (1848). 
"Jenkins  v.  Caddo,  7  La.  An.  559  (1852). 
7Hosstatter  v.  Wilson,  36  Barb.  307  (1862). 

8 Hodges  v.  Shuler,  22  N.  Y.  114  (1860) ;  Hotchkiss  v.  Nat.  Banks,  21  Wall, 
354  (1874). 

"Considerant  v.  Brisbane,  6  Duer  686;  14  How.  Pr.  487  (1857). 


STIPULATION    FOR   ATTORNEY'S    FEES.  315 

paid  by  release  of  payee  from  indorsement "  of  another  note, 
has  been  held  to  be  negotiable.1  » 

A  note  payable  in  installments,  with  a  provision  that  the 
whole  shall  become  due  on  default  in  any  installment,  is 
none  the  less  a  negotiable  note.2  Although  the  contrary  has 
been  held  as  to  the  effect,  on  a  negotiable  railroad  bond,  of  a 
clause  reserving  to  the  maker  the  right  to  pay  the  sum  men- 
tioned before  maturity  with  twenty  per  cent,  discount.3  So, 
too,  a  condition  postponing  the  payment  of  a  note  until  the 
happening  of  a  certain  contingency,  has  been  held  to  render 
the  note  a  mere  agreement.4  Of  the  same  force  is  a  stipula- 
tion in  a  note  for  its  payment  to  a  third  person,  if  so  indorsed 
on  the  note  held  by  him.5 

§  205.  Stipulation  for  Attorney's  Fees. — The  effect  of  a 
stipulation  for  attorney's  fees  or  costs  of  suit  contained  in  a 
note  has  been  the  subject  of  much  consideration,  more  espe- 
cially in  our  Western  States.  As  an  agreement,  and  irre- 
spective of  usury  laws  and  other  statutory  prohibitions,  such 
a  stipulation  is  in  itself  valid.6  And  the  fees  so  stipulated 
for  may  be  recovered  by  the  holder  of  the  note,  although  not 
the  original  payee.7  And  where  a  stipulation  of  this  sort  is 
contained  in  a  bill  of  exchange,  it  has  been  held  to  be  em- 
braced in  the  liability  assumed  by  the  acceptor.8  The  fees 
provided  for  must,  however,  be  proved,  if  the  amount  be  not 

^ool  v.  McCrary,  1  Ga.  319  (1846-). 

2Carlon  v.  Kenealy,  12  M.  &  W.  139  (1843) ;  Miller  v.  Biddle,  13  L.  T.  R. 
334  (Exch.  1865). 

3  Chouteau  v.  Allen,  70  Mo.  290  (1879). 

4 Blake  v.  Coleman,  22  Wis.  396  (1868). 

5 Bunker  v.  Athearn,  35  Me.  364  (1853). 

•Meacham  v  Pinson,  60  Miss.  217  (1882);  Brown  v.  Barber,  59  Ind.  533 
(1877);  First  Nat.  Bank  v.  Breese,  39  Iowa  610  (1874);  Garver  v.  Pontious, 
66  Ind.  191  (1879) ;  Mathews  v.  Norman,  42/6.  176  (1873) ;  Sinker  v.  Fletcher, 
61  lb.  276  (1878);  Smiley  v.  Meir,  47  lb.  559  (1874);  Maynard  v.  Mier,  85 
lb.  317  (1882);  Miner  v.  Paris  Exch  Bank,  53  Tex.  559  (1880).  A  statute 
was  passed  in  Indiana  in  1875  (1  R.  S.  1876  p.  149)  declaring  conditional 
stipulations  for  attorney's  fees  in  promissory  notes  to  be  void.  It  does  not 
apply  to  unconditional  agreements,  Garver  v.  Pontious,  supra. 

'Johnson  v.  Crossland,  34  Ind.  334  (1870).  Such  stipulation  passes  with 
the  note  on  its  transfer,  Bank  of  British  North  America  v.  Ellis,  2  Fed.  Rep. 
44  (1880). 

•Smith  v.  Muncie  Nat.  Bank,  29  Ind.  158  (1867). 


316  FORM ADDITIONAL    STIPULATIONS. 

specified  in  the  note.1  And  where  "  reasonable  attorney's 
fees  "  are  provided  for,  it  is  error  to  render  judgment  for 
such  fees  without  any  evidence  determining  their  amount.2 
An  agreement  in  a  note  to  pay  attorney's  fees  for  its  collec- 
tion is  not  conditional,  unless  made  dependent  on  some  con- 
tingency other  than  mere  collection.3 

In  some  States,  however,  such  a  stipulation  is  held  to  be 
against  public  policy  and  void  as  a  mere  makeshift  to  evade 
the  laws  against  usury.4  And  fees  of  this  sort,  although 
expressly  stipulated  for,  cannot  be  recovered  on  a  usurious 
note.6 

It  may  be  said  in  general  that  such  a  stipulation  for  fees 
does  not  affect  the  negotiability  of  the  note  containing  it;6 
even  though  the  stipulation  be  restricted  to  the  case  of  suit 
being  brought  on  the  instrument.7  And  a  stipulation  for 
fees,  "  if  suit  be  instituted,"  is  binding  upon  the  indorser 
of  the  note  as  well  as  the  maker.8  Where  a  note  provides  for 
the  payment  of  fees  in  case  of  suit,  making  a  claim  against 
the  estate  of  the  deceased  maker,  if  the  claim  be  contested, 
is  sufficient  to  entitle  the  holder  to  recover  fees.9 

xWyant  v.  Pottorff,  37  Ind.  512  (1871). 

2 First  Nat.  Bank  of  Muscatine  v.  Krance,  50  Iowa  235  (1878). 

sTuley  v.  McClung,  67  Ind.  10  (1879). 

*Myer  v.  Hart,  40  Mich.  517  (1879);  State  v.  Taylor,  10  Ohio  378  (1841); 
Boozer  v.  Anderson,  42  Ark.  167  (1883).  So,  in  case  of  a  like  stipulation 
contained  in  a  warrant  of  attorney,  Shelton  v.  Gill,  11  Ohio  417  (1842).  And 
such  stipulation  in  a  note  has  heen  held  void  as  not  authorized  by  law,  Dow 
v.  Updike,  11  Neb.  95  (1881)  ;  or  as  providing  without  consideration  for  a 
penalty  or  forfeiture,  Merchants'  Nat.  Bank  v.  Levier,  14  Fed.  Rep.  662 
(1882). 

5 Miller  v.  Gardner,  49  Iowa  234  (1878) ;  Code  of  Iowa  \  2080. 

61  Daniel  66;  2  Parsons  147;  Dietrich  v.  Bayhi,  23  La.  An.  767  (1871); 
Heard  v.  Dubuque  Co.  Bank,  8  Neb.  10  (1878);  Kemp  v.  Klaus,  lb.  24; 
Sperry  v.  Horr,  32  Iowa  184  (1871);  Smith  v.  Silvers,  32  Ind.  321;  Stone- 
man  v.  Pyle,  35  lb.  103  (1871) ;  Proctor  v.  Baldwin,  82  lb.  370  (1882) ;  May- 
nard  v.  Mier,  85  lb.  317  (1882);  Seaton  v.  Scoville,  18  Kans.  433  (1877); 
Wilson  S.  M.  Co.  v.  Moreno,  7  Fed.  Rep.  806;  24  Alb.  L.  J.  336  (1879  U.  S.  C. 
■C.  Oregon) ;  Adams  v.  Addington,  16  Fed.  Rep.  89  (1883) ;  Trader  v.  Chides- 
ter,  41  Ark.  242  (1883) ;  S.  C,  19  Cent.  L.  J.  318.     See,  too,  14  Cent.  L.  J.  86. 

7Gaar  v.  Louisville  Banking  Co.,  11  Bush  180  (1874);  Nickerson  v.  Shel- 
don, 33  111.  372  (1864);  Stoneman  v.  Pyle,  35  Ind.  103  (1871);  Howenstein 
v.  Barnes,  9  Cent.  L.  J.  48;  5  Dillon  482  (1879) ;  Peyser  v.  Cole,  19  Cent.  L.  J. 
236;  S.  C,  4  Pac.  Rep.  520  (Oregon  S.  C.  1884). 

8  Hubbard  v.  Harrison,  38  Ind.  323  (1871). 

9Davidson  v.  Vorse,  52  Iowa  384  (1879). 


STIPULATION    FOE,   ATTORNEY'S    FEES.  317 

So,  if  the  stipulation  be  in  conditional  form,  "should  this 
*  te  be  collected  by  legal  process,"  it  is  still  valid.1  But  it 
has  been  held,  in  Illinois,  that  where  the  stipulation  is  only 
to  pay  fees,  if  the  note  be  not  paid  when  due  and  be  sued 
upon,  the  fees  cannot  be  recovered  in  the  original  suit  brought 
on  the  note,  because  not  due  by  its  terras  until  the  suit  is 
brought.2 

§  206.  In  opposition  to  the  authorities  already  cited,  it  has 
been  held  that  a  stipulation  for  fees  if  the  note  be  sued  on 
destroys  its  negotiability  ;3  and  that  such  provisions  are  con- 
tingent and  cannot  find  place  in  a  negotiable  instrument.4 
Such  stipulations  have  also  been  held  to  be  against  public 
policy  and  void.5  So,  likewise,  in  Michigan  an  agreement 
contained  in  a  note  for  a  gross  sum  for  attorney's  fees  if  not 
paid  at  maturity  and  for  express  charges.6  An  agreement 
contained  in  a  note  for  attorney's  fees,  "together  with  all 
taxes  and  charges  in  the  nature  thereof  that  may  be  levied 
on  this  note,"  renders  uncertain  the  amount  to  be  paid  and 
destroys  the  negotiability  of  the  note.7     So,  it  has  been  held 

1McGill  v.  Griffin,  32  Iowa  445  (1871). 

2 Easter  v.  Boyd,  79  111.  325  (1875). 

'Jones  v.  Radatz,  27  Minn.  240  (1880).  So,  in  Wisconsin,  First  Nat,  Bank 
v.  Larser,  18  Cent.  L.  J.  399  (Wis.  S.  C.  1884) ;  and  Maryland,  Maryland  Fer- 
tilizing Co.  v.  Newman,  60  Md.  584(1883);  and  Pennsylvania,  Johnston  v.- 
Speer,  92  Penna.  St.  227  (1879)  ;  and  Missouri,  First  Nat.  Bank  v.  Marlow,  71 
Mo.  618  (1880)  ;  First  Nat.  Bank  v.  Gay,  lb.  627;  First  Nat.  Bank  v.  Jacobs, 
73  lb  35  (1880).  And  for  such  provisions  coupled  with  other  agreements, 
see  \  208,  infra. 

4  "If  collected  by  attorney,"  First  Nat.  Bank  v.  Gay,  63  Mo.  33  (1876)  ;  "  if 
not  paid  when  due,"  Wood's  v.  North,  84  Penna.  St.  407  (1877).  Especially, 
if  uncertain  in  amount  and  other  respects  as  well  as  contingent,  Hardin  v. 
Olson,  14  Fed.  Rep.  705  (Minn.  1882). 

5Witherspoon  v.  Musselman,  14  Bush  214  (1878). 

6Bullock  v.  Taylor,  39  Mich.  137  (1878).  As  to  the  stipulation  for  fees 
Judge  Cooley  says,  p.  141 :  "  It  is  opposed  to  the  policy  of  our  laws  concern- 
ing attorneys'  fees,  and  it  is  susceptible  of  being  made  the  instrument  of  the 
most  grievous  wrong  and  oppression.  It  would  be  idle  to  limit  interest  to 
a  certain  rate,  if  under  another  name  forfeitures  may  be  imposed  to  an 
amount  without  limit.  The  provision  in  these  notes  is  as  much  void  as  it 
would  have  been  had  it  called  the  sum  imposed  by  its  true  name  of  penalty 
or  forfeiture." 

TFarquhar  v.  Fidelity  Ins.  Co.,  18  Alb.  L.  J.  330  (1878),  U.  S.  C.  C.  Penna.; 
S.  C,  13  Phila.  473;  First  Nat.  Bank  v.  Bynum,  84  N.  C.  24  (1881).  Espe- 
cially where  left  blank  as  to  percentage,  e.g.  "with per  cent,  attorney's 

fees,  if  collected,"  Johnston  v.  Speer/ 92  Penna.  St.  227  (1879). 


318  FORM ADDITIONAL    STIPULATIONS. 

in  Missouri  that  a  note  containing  a  stipulation  for  specified 
attorney's  fee  if  the  note  be  not  paid  when  due,  and  also  a 
warrant  to  enter  judgment  on  the  note,  is  not  a  negotiable 
note.1  This  has  also  been  held  in  a  recent  case  in  Pennsyl- 
vania.2 

§  207.  Warrant  to  Confess  Judgment. — What  effect  a  war- 
rant to  confess  judgment  contained  in  a  note  will  have  upon 
its  negotiability,  is  still  perhaps  an  unsettled  question;3  al- 
though it  has  been  held  in  Ohio  that  the  note  remains  nego- 
tiable, but  that  its  negotiability  does  not  extend  to  the  warrant 
or  power  of  attorney  contained  in  it.4  So,  it  has  been  held 
that  a  waiver  of  right  of  appeal,  and  of  all  valuation,  ap- 
praisement, stay  and  exemption  laws,  did  not  affect  the  nego- 
tiability of  the  note  containing  it.5  And  the  same  has  been 
held  of  a  power  contained  in  a  note  to  issue  execution  in  case 
of  non-payment.6  On  the  other  hand,  a  warrant  for  judg- 
ment contained  in  a  note  has  been  held  in  Pennsylvania  to 
destroy  its  negotiability;7  and  so,  also,  a  like  warrant  with 
release  of  errors  and  waiver  of  stay  and  exemption  laws.8 
In  Missouri,  too,  a  note  containing  a  stipulation  for  attorney's 
fees  and  a  warrant  to  enter  judgment  in  case  of  default,  is 
held  not  to  be  negotiable  ;9  as  also  a  stipulation  for  attorney's 
fees  with  a  waiver  of  all  exemptions.10 

§  208.  Other  Agreements. — If  the  additional  clause  pro- 
vides, as  has  been  said,  for  some  object  quite  distinct  from  the 
payment  of  money,  it  destroys  the  character  of  the  instru- 

1  First  Nat.  Bank  v.  Marlow,  71  Mo.  618  (1880) ;  First  Nat.  Bank  v.  Gay,  63 
Jb.  33;  Samstag  v.  Conley,  64  lb.  476;  Storr  v.  Wakefield,  71  lb.  622;  First 
Nat.  Bank  v.  Gay,  lb.  627. 

2Sweeney  v.  Thickstun,  77  Penna.  St.  131  (1874). 

3Cushman  v.  Welsh,  19  Ohio  St.  536  (1869). 

4Osborn  v.  Hawley,  19  Ohio  130  (1850). 

^Zimmerman  v.  Anderson,  67  Penna.  St.  421  (1871) ;  Zimmerman  v.  Rote 
75  lb.  188  (1874). 

6Fort  v.  Delee,  22  La.  An.  181  (1870). 

'Sweeney  v.  Thickstun,  77  Penna.  St.  131  (1874). 

"Overton  v.  Tyler,  3  Penna.  St.  346  (1846). 

"First  Nat.  Bank  v.  Marlow,  71  Mo.  618  (1880). 
'"Samstag  v.  Conley,  64  Mo.  476  (1877). 


OTHER    AGREEMENTS.  319 

merit  as  a  bill  or  note.1  Thus,  if  the  instrument  be  for  the 
payment  of  money  and  also  for  the  delivery  of  a  horse  and 
a  wharf,  it  is  not  a  note.2  Or  if  it  be  to  pay  money  and  to 
insure  the  payee's  colts,  it  is  not  a  note;3  or,  to  pay  a  certain 
sum  of  money  "and  all  fines  according  to  the  rule;"4  or,  a 
certain  sum  "and  the  demands  of  the  Sick  Club;"5  or,  to 
pay  a  certain  sum  of  money  "  and  take  up  our  note  given  to 
W.  &  H.  for  that  amount;"6  or  to  pay  money  and,  on  the 
payee's  part,  to  build  a  fence.7  So,  it  is  said  that  a  promise 
to  pay  a  certain  sum  of  money  "  and  all  other  sums  that  may 

'Goldman  v.  Blum,  58  Tex.  630  (1883).  So,  a  note  reciting  that  it  was 
given  for  goods  purchased  which  were  to  remain  the  property  of  the  payee 
until  the  note  was  paid,  Sloan  v.  McCarty,  134  Mass.  245  (1883).  But  see, 
contra,  Mntt  v.  Havana  Nat.  Bank,  22  Hun  354  (1880).  So,  a  contract  to  pay 
money  with  a  stipulation  as  to  possession  and  title  of  person,  property  and 
payment,  the  attorney's  fees  has  been  held  not  to  be  a  note,  Johnston  Har- 
vester Co..  v.  Clark,  30  Minn.  308  (1883) ;  or,  for  attorney's  fees  "  without  any 
relief  from  valuation  or  appraisement  laws,"  Morgan  v.  Edwards,  53  Wis. 
599  (1881) ;  or,  for  attorney's  fees  and  possession  of  property  until  note  paid, 
with  a  provision  reserving  to  the  payee  the  right  of"  declaring  the  note  due 
at  any  time  when  he  should  deem  himself  insecure,  and  the  power  to  take 
possession  of  the  property  in  such  case,  Deering  v.  Thorn,  29  Minn.  120 
(1884) ;  or,  for  attorney's  fees  and  right  of  payee  to  declare  the  note  due  at 
any  time  he  might  deem  it  insecure,  First  Nat.  Bank  v.  Bynum,  84  N.  C.  24 
(1881);  or,  include  the  power  to  take  the  property  and  sell  it  when  the 
holder  should  deem  himself  insecure,  Smith  v.  Maria  nd,  59  Iowa  645  (1882) ; 
or,  containing  an  agreement  on  the  payee's  part,  the  maker  agreeing  to  pay 
in  services,  McClellan  v.  Coffin,  93  Ind.  456  (1883).  So,  a  note  for  the  pay- 
ment of  a  certain  sum  "and  all  other  debts  which  A.  B.  is  security  for," 
Borum  v.  Reed,  73  Mo.  461  (1881) ;  or,  "with  all  taxes  and  charges  in  the 
nature  thereof  that  may  be  laid  upon  the  note  or  upon  the  indenture  of 
mortgage  accompanying  it,"  Farquhar  v.  Fidelity  Ins.  Co.,  13  Phila.  473 
(1878) ;  or,  containing  a  provision  as  to  the  title  of  certain  land  and  its  fu- 
ture disposition,  Killam  v.  Schoeps.  26  Kans.  310  (1881) ;  or,  extending  the 
time  of  payment  if  an  agent  "does  not  sell  enough  in  one  year,"  Miller  v. 
Poage,  56  Iowa  96  (1881) ;  or,  providing  for  extension  unless  the  maker 
"can  make  it  convenient,  and  for  other  security  to  be  taken  in  payment 
when  the  maker  can  realize  the  same  in  proper  shape,"  Humphrey  v.  Beck- 
with,  48  Mich.  151  (1882);  or,  for  founding  college  scholarships  which  are 
to  be  available  on  the  payment  of  the  annual  interest,  Ingham  v.  Dudlev, 
60  Iowa  14  (1882). 

On  the  other  hand,  a  coJlateral  agreement  not  inconsistent  with  the  note 
has  been  held  not  to  destroy  its  negotiability,  Ewing  v.  Clark,  76  Mo.  545 
(1882).  And  this  has  been  held  of  a  note  given  for  an  insurance  policy  with 
a  clause  avoiding  the  policy  on  non-payment  of  the  note,  Pendleton  v. 
Knickerbocker  L.  I.  Co.,  7  Fed.  Rep.  169  (1881). 

'Martin  v.  Chauntry,  Stra.  1271. 

8  Austin  v.  Burns,  16  Barb.  643  (1853). 

•Ayrey  v.  Fearnsides,  4  M.  &  W.  168. 

•Bolton  v.  Dugdale,  4  B.  &  Aid.  619  (1833). 

"Cook  v.  Satterlee,  6  Cow.  108  (1826). 

^Fletcher  i\  Thompson,  55  X    H.  308  (1875). 


320  FORM ADDITIONAL    STIPULATIONS. 

be  due  him,"  is  uncertain  in  amount  and  therefore  not  a 
note.1  And  the  same  has  been  held  even  of  a  promise  to 
pay  a  specified  amount  "  and  such  sums  as  may  arise  as 
additional  premiums  on  said  policy."2  But,  in  England,  an 
instrument  providing  for  the  payment  of  a  certain  sum  of 
money,  "  first  deducting  thereout  any  interest  or  money 
which  S.  may  owe  me  on  any  account,"  was  held  to  be  a 
promissory  note  under  the  Statute  of  Anne.3 

Where  a  note  was  given  in  payment  for  the  hire  of  ne- 
groes and  contained  a  provision  for  clothing  them,  which  was 
a  matter  required,  and  therefore  implied,  by  law,  this  provi- 
sion was  held,  in  the  Carolinas,  to  render  a  note  non-nego- 
tiable.4 But  the  contrary  conclusion  was  reached  as  to  a 
similar  note  in  Tennessee.5  In  Alabama  such  a  note,  con- 
taining the  further  provision  to  return  the  negro  to  the  payee 
at  the  end  of  the  term  of  hiring,  could  be  declared  on  as  a 
note;6  but  this  agreement  was  not  assignable  with  the  note.7 

As  to  the  effect  of  additional  stipulations  provided  by  a 
contemporaneous  writing  distinct  from  the  note  itself,  the 
reader  is  referred  to  the  previous  section  of  this  chapter. 
Such  an  agreement  warranting  the  quality  of  goods  sold  has 
no  effect  on  the  negotiability  of  a  note  given  for  the  goods.8 

1  Smith  v.  Nightingale,  2  Stark.  375  (1818).  See,  also,  Firbank  v.  Bell,  1  B. 
&  Aid.  36. 

2 Lime  Rock  Ins.  Co.  v.  Hewett,  60  Me.  407  (1872). 

3 Barlow  v.  Broadhurst,  4  Moore  471  (1820). 

•Wallace  v.  Dyson,  1  Speers  127  (1842);  Knight  v.  Wilmington  R.  R.,  1 
Jones  357  (1854) ;  Barnes  v.  Gorman,  9  Rich.  297  (1856). 

6  Baxter  v.  Stewart,  4  Sneed  213  (Tenn.  1856). 
•Gaines  v.  Shelton,  47  Ala.  413  (1872). 

7  Winston  v.  Metcalf,  7  Ala.  837  (1845).  And  such  provision  in  a  sealed 
covenant  has  been  held  to  destroy  its  assignability,  Boyd  v.  Rumsey,  5  J.  J. 
Marsh.  42  (1830). 

•Cook  v.  Weirman,  51  Iowa  561  (1879). 


ENGLISH    AND    AMERICAN   STAMP   ACTS. 


CHAPTER  VII. 

y  ;RM— COMPLETION  OF  CONTRACT— INLAND 

BILLS. 

I.  Stamps. 
II.  Delivery. 

III.  Inland  and  Foreign  Bills. 

IV.  Parts  or  Sets  of  Parts. 


I.  STAMPS. 

909.  English  and  American  Stamp  Acts. 

210.  Constructions  of  U.  S.  Statutes. 

211.  Wnen  Stamp  may  be  Affixed — Presumptions. 

212.  Cancellation — Fraudulent  Omission. 

213.  Clause  Avoiding  for  Want  of  Stamp  Unconstitutional. 

214.  Admissibility  in  Evidence — Pleading. 

215.  Action  on  Original  Consideration. 

§  209.  English  and  American  Stamp  Acts. — Almost  all 
countries  require  by  statute  certain  stamps  upon  bills  of  ex- 
change and  notes.  No  courts,  however,  charge  themselves 
with  the  enforcement  of  foreign  stamp  laws.  This  is  the 
rule,  at  least,  in  England  and  in  the  United  States.1  It  is 
also  the  rule  of  practice  in  State  courts  as  to  stamp  laws  of 
other  States  of  the  Union,  if  any.2 

The  English  stamp  acts  now  in  force  apply  to  bills  of 
exchange,  promissory  notes  and  checks,  and  the  amount  of 
stamp  required  depends  in  general  upon  the  amount  for 
which  the  instrument  is  made.3 

'Edwards  on  Stamp  Act  14;  Holman  v.  Jobnson,  Cowp.  143;  James  v. 
Catherwood,  3  D.  &  R.  190;  Ludlow  v.  Van  Rensselaer,  1  Johns.  94  (1806). 
''As  we  do  not  sit  here,"  said  Livingston,  J.,  in  the  latter  case,  "to  enforce 
the  revenue  laws  of  other  countries,  it  is  perfectly  immaterial  in  a  suit  be- 
fore us,  whether  or  not  the  note  was  stamped  according  to  the  laws  of 
France." 

aFant  v.  Miller,  17  Gratt.  47  (1866),  as  to  Maryland  Stamp  Act.  This  act 
rendered  the  unstamped  paper  inadmissible  in  evidence  but  not  void. 

'Prior  to  October  11th,  1854,  the  stamp  required  by  the  English  Statute 
(55  Geo.  III.  c.  184)  for  bills  and  notes,  varied  in  amount  according  to  the 
length  of  time  the  paper  had  to  run.  This  was  changed  by  Act  of  17  and 
18  Vict.  c.  S3,  and  the  amount  of  stamp  is  now  regulated,  as  it  was  by  the 


322  FORM COMPLETION  OF  CONTRACT. 

The  first  stamp  act  in  the  United  States  was  passed  in 
July,  1797,  and  required  a  stamp  of  ten  cents  upon  prom- 
issory notes  between  twenty  dollars  and  one  hundred  dollars, 
unless  they  were  made  payable  within  sixty  days.  Without 
such  stamp  they  were  not  admissible  in  evidence.  This  act 
was  held  in  the  State  of  New  York  to  apply  to  its  Supreme 
Court.1     It  was  repealed  in  1802  ;  and  from  that  time  until 

U.  S.  Int.  Rev.  Act,  by  the  amount  for  which  the  bill  or  note  is  drawn.  By 
the  Act  of  1870  (33  and  34  Vict.  c.  97)  all  bills  of  exchange  and  promissory 
notes,  other  than  bank  notes,  "drawn  or  expressed  to  be  payable,  or  actu- 
ally paid  or  indorsed,  or  in  any  manner  negotiated  in  the  United  Kingdom," 
are  subjected  to  a  stamp  duty  by  the  following  schedule: 

Payable  on  demand,         .........     Id. 

Under  £5, Id. 

Exceeds  £5  and  does  not  exceed  £10, 2d. 

10        "  "  25, 3d. 

"         25        "  »  50, 6d. 

"        50        "  "  75, 9d. 

75        "  "  100, Is. 

Every  £100  or  fraction  thereof,  la. 

Under  bills  of  exchange  are  included  by  the  act  drafts,  orders,  checks  and 
letters  of  credit,  as  well  as  orders  for  payment  in  installments  or  out  of  a 
particular  fund  (£  48),  but  only  one  of  a  set  need  be  stamped  (§  55).  Under 
promissory  notes  is  included  any  document  or  writing  for  the  payment  of 
money  (§  49),  even  though  made  payable  out  of  a  particular  fund  or  on  a 
contingency.  By  the  Act  of  1871  (34  and  35  Vict.  c.  74)  demand  notes,  re- 
ferred to  in  the  schedule  to  the  Act  of  1870,  are  made  to  include  all  bills  of 
exchange  and  promissory  notes  payable  at  sight  or  on  presentation.  The 
Act  of  1870  exempts  from  stamp  duty  Bank  of  England  bills  or  notes, 
bankers'  drafts  issued  solely  for  purpose  of  clearing  accounts  between  bank- 
ers in  the  United  Kingdom,  letters  by  bankers  in  the  United  Kingdom  direct- 
ing payment  of  money,  not  to  bearer  or  order  and  not  sent  to  the  payee  or 
any  one  on  his  behalf,  letters  of  credit  authorizing  drafts  to  be  drawn  out  of 
the  United  Kingdom  payable  in  it.  interest  coupons  attached  to  and  issued 
with  the  security,  and  certain  official  drafts,  orders  and  warrants.  By  the 
Act  of  17  and  IS  Vict.  c.  83  rates  were  imposed  according  to  the  following 
classification  :  1.  Inland  bills  of  exchange,  drafts  or  orders  for  the  payment 
to  the  bearer  or  to  order,  at  any  time  otherwise  than  on  demand,  of  any 
sum  of  money.  2.  Promissory  notes  for  the  payment  in  any  other  manner 
than  to  the  bearer  on  demand  of  any  sum  of  money  not  exceeding  £100. 
3.  Promissory  notes  for  the  payment  either  to  the  bearer  on  demand,  or  in 
any  other  manner  than  to  the  bearer  on  demand,  of  any  sum  of  money 
exceeding  £100  (Jacob's  Fishers'  Dig.  Vol.  I.  p.  1107).  The  Act  of  48  Geo. 
III.  c.  149  and  55  Geo.  III.  c.  184  also  contained  provisions  including  bills, 
drafts  or  orders  payable  out  of  a  particular  fund.  A  post-dated  check,  not 
included  in  the  statutory  enumeration,  has  been  held  to  be  admissible  in 
evidence  with  a  penny  stamp,  Bull  v.  O'Sullivan,  L.  R.  6  Q.  B  209  (1871). 
A  bill  drawn  in  the  Isle  of  Man  prior  to  1S70  and  not  presented  or  nego- 
tiated in  the  United  Kingdom,  has  been  held  to  be  a  foreign  bill  and  as  such 
not  within  the  Stamp  Act  of  17  and  18  Vict.,  Griffin  v.  Weatherby,  L.  R.  3 
Q.  B.  753  (1868).  The  amounts  above  designated  need  not  take  accruing 
interest  into  account,  Israel  v.  Benjamin,  3  Campb.  41. 

'Edeck  v.  Ranuer,  2  Johns.  423  (1S07).  This  case  assumed  rather  than 
decided  the  applicability  of  the  statute  to  the  State  court. 


ENGLISH    AND    AMERICAN   STAMP    ACTS.  323 

the  first  of  July,  1862,  there  was  no  stamp  required  upon 
commercial  paper  by  any  act  of  Congress. 

On  the  first  of  July,  1862,  an  act  was  passed,  requiring  all 
bank  checks,  drafts  or  orders  above  twenty  dollars,  inland 
bills  of  exchange,  drafts  and  notes,  excepting  bank  notes, 
over  twenty  dollars,  and  foreign  bills  of  exchange  or  letters 
of  credit,  to  be  stamped.  The  stamp  upon  bank  checks, 
drafts  or  orders  over  twenty  dollars  was  two  cents ;  upon 
inland  bills  of  exchange,  drafts  and  notes  over  twenty  dol- 
lars, from  five  cents,  upward,  varying  according  to  the 
amount  of  money  to  be  paid;  and  on  foreign  bills  and  letters 
of  credit,  in  sets  of  three,  on  each  set  three  cents  and  up- 
ward, varying  according  to  the  amount  of  the  bill  or  letter.1 
By  section  95  of  this  act,  a  penalty  was  incurred  by  the  omis- 
sion of  the  stamp,  and  it  was  further  provided  that  the  instru- 
ment, if  not  stamped,  "  shall  be  deemed  invalid  and  of  no 
effect."  This  provision  was,  from  time  to  time,  extended,  so 
as  not  to  apply  to  commercial  paper  made  before  June  1st, 
1863.  By  the  Act  of  December  25th,  1862,  provision  was 
also  made  for  stamping  such  instruments  in  open  court,  and 
by  Act  of  March  3d,  1863,2  it  was  provided  that  such  instru- 
ments should  not  be  admitted  or  used  in  evidence  until  they 
were  properly  stamped. 

The  United  States  Stamp  Acts  provided  that  no  instru- 
ment wanting  the  requisite  stamp  should  "  be  admitted  or 
used  in  evidence  in  any  court  until  a  legal  stamp,  denoting 
the  amount  of  tax,  was  affixed  thereto,  as  prescribed  by  law," 
and  this  was  enforced  by  a  penalty.  And  it  was  further  pro- 
vided that  the  unstamped  instrument  should  "  be  deemed 
invalid  and  of  no  effect;"  with  the  provision,  however,  for 
having  such  instrument  stamped  by  the  United  States  col- 
lector of  the  district.3  They  also  provided  that  such  revenue 
stamp  should  be  canceled  by  the  initials  of  the  party,  with 

lV.  S.  Stats.  1862  c.  119. 

■U.  S.  Stats.  1863  c.  74|16. 

JU.  S.  Rev.  Stats.  Ed.  1878,  |g  3421,  3422. 


324  FOKM COMPLETION  OF  CONTRACT. 

the  date,  or  in  such  other  way  as  might  be  prescribed  by  the 
Commissioner  of  Internal  Revenue.1 

All  of  these  provisions  were  repealed  by  the  Act  of 
October  1st,  1872,  except  as  to  checks.  A  revenue  stamp  of 
two  cents  was  still  required  upon  every  "  bank  check,  draft,, 
order  or  voucher  for  the  payment  of  money  drawn  upon  any 
bank,  banker  or  trust  company,  at  sight  or  on  demand," 
until  May  15th,  1883.2  This  provision  did  not  include  offi- 
cial drafts  or  vouchers  of  federal  or  municipal  governments.3 

At  present  there  is  no  law  in  the  United  States  requiring 
stamps  upon  any  kind  of  commercial  paper. 

§  210.  Constructions  of  U.  S.  Statutes. — There  have  been 
numerous  cases  before  the  federal  and  state  courts  in  America,, 
construing  the  stamp  acts  since  1862.  It  has  been  held  that 
a  United  States  revenue  stamp  was  in  no  case  necessary  on 
an  instrument  executed  before  October,  1862/  But  the 
stamp  act  of  1870  was  held  to  apply  to  a  note  already  made 
at  that  time.6  The  United  States  stamp  acts  did  not  apply 
to  a  bill  or  note  made  during  the  war  within  the  lines  of  the 
Confederate  States.6  And  this  was  held  to  be  the  case  in 
Texas  even  as  late  as  January,  1865.7 

The  indorsement  of  a  note  or  bill  did  not,  under  these 
statutes,  require  a  stamp.8  Nor  did  the  certification  of  a  check.9 
And  a  due-bill  reading,  "Due  A.  B.  on  corn,  five  hundred 
and  twenty-five  dollars  ($525),"  has  been  held  not  to  require 
a  stamp.10    This  is  true,  too,  of  a  mere  admission  of  a  balance 

'U.  S.  Rev.  Stats.,  Ed.  1878,  U  3423,  3424. 

SU.  S.  Rev.  Stats.,  Ed.  1878,  §  3418.  In  1883  the  act  which  still  required 
stamps  on  checks  was  repealed,  to  take  effect  on  May  15th,  1883,  U.  S.  Laws 
1883  c.  121. 

3U.  S.  Rev.  Stats.,  Ed.  1878,  §  3420. 

*  Bayly  v.  McKnight,  19  La.  An.  321  (1867). 

5Pugh  v.  McCormick,  14  Wall.  361  (1871).  But  as  to  the  Acts  of  1864  and 
1865,  see  Garland  v.  Lane,  46  N.  H.  245  (1865) ;  Whigham  v.  Pickett,  43  Ala. 
140  (1869). 

6Susong  v.  Williams,  1  Heisk.  625  (1870) :  McElvain  v.  Mudd,  44  Ala.  48 

(1870). 

7  Van  Alstyne  v.  Sorley,  32  Tex.  518  (1870). 
8Pugh  v.  McCormick,  14  Wall.  361  (1871). 
•Merchants'  Bank  v.  State  Bank,  10  Wall.  604  (1870). 
10Jacquin  v.  Warren,  40  111.  459  (1866). 


WHEN   STAMP    MAY    BE    AFFIXED.  325 

due  on  an  account,  which,  as  has  been  already  seen,  is  not 
equivalent  to  a  promissory  note.1  Again,  where  a  note  was 
altered  by  changing  its  date,  it  was  held  not  to  need  a  new 
stamp  on  that  account,  as  a  new  note.2  And  where  a  con- 
temporaneous note  aud  agreement  are  made  to  operate  as  one 
instrument,  the  stamp  on  the  note  alone  has  been  held  suffi- 
cient.3 A  revenue  stamp  was  necessary  to  a  small  draft  by 
the  agent  or  treasurer  of  a  corporation  for  wages,  but  such 
draft  might  be  stamped  as  a  check  and  not  as  a  note.4 

It  was  not,  however,  necessary  upon  a  bond  required  by  law 
in  insolvency  cases,  this  not  being  a  voluntary  instrument.5 
Where  a  note,  originally  stamped  according  to  law,  had  been 
barred  by  the  discharge  of  the  maker  as  an  insolvent,  his  sub- 
sequent promise,  by  an  unstamped  letter,  to  pay  the  note,  was 
held  to  be  sufficient ;  this  not  being  a  new  contract,  but 
merely  evidence  of  the  original  promise.6  Under  the  Scal- 
ing Acts  in  the  Southern  States,  a  note  made  for  a  large 
amount  in  confederate  currency,  but  valued  at  much  less  and 
stamped  as  a  note  for  a  smaller  amount,  was  admissible  in 
evidence,  the  jury  being  left  to  estimate  the  value  of  the 
note.7 

§  211.  When  Stamp  may  be  Affixed — Presumptions. — Where 
an  instrument  appears  properly  stamped,  it  is  a  presumption 
of  law  that  the  stamp  was  affixed  at  the  time  of  its  delivery.8 
So,  it  is  presumed,  in  the  absence  of  proof  to  the  contrary,  in 
an  action  upon  a  lost  bill  of  exchange,  that  it  was  properly 
stamped  ;  especially  if  the  bill  be  detained  in  the  defendant's 
possession  after  notice  given  to  produce  it.9 

"Jones  v.  Jones,  38  Cal.  584  (1869). 

JPrather  v.  Zulauf,  38  Ind.  155  (1871). 

3Bo\vker  v.  Goodwin,  7  Nev.  135  (1871). 

4 United  States  v.  Isham,  17  Wall.  496  (1873). 

•McGovern  v.  Hoesback,  53  Penna.  St.  177  (1866). 

"Cook  v.  Shearman,  103  Mass.  21  (1869). 

'Kill  v.  Johnson,  48  Ga.  189  (1873). 

■Union  Asrric.  Assoc,  v.  Neill,  31  Iowa  95  (1870) ;  Iowa,  &c,  R.  R.  v.  Per- 
kins, 28  lb.  281  (1869) ;  or.  at  the  time  of  its  transfer,  if  that  is  what  the  law 
requires,  Bradlaugh  v.  DeRin,  L  R.  3  C.  P.  286  (1868);  and  by  the  proper 
person.  Iowa.,  &c.  R.  R  v.  Perkins,  supra. 

'Marine  Ins.  Co.  v.  Haviside,  L.  R.  5  H.  L.  625. 


326         FORM — COMPLETION  OF  CONTRACT. 

Where,  however,  a  note  was  stamped  by  the  holder  after 
its  delivery,  it  was  still  valid  in  the  absence  of  fraudulent 
intent.1  And  if  left  unstamped  through  the  maker's  ignor- 
ance and  afterwards  stamped  by  the  payee,  the  maker  could 
not  object  to  such  stamping;2  even  though  he  had  been  re- 
quested to  cancel  such  stamp  and  had  refused.3  Indeed,  a 
bill  or  note  may  be  stamped  after  issue  joined  in  a  suit  upon 
it,  and  this  will  constitute  no  defense  against  a  bona  fide 
holder  for  value.4  And  if  a  note  was  stamped  after  its 
delivery  without  authority  of  the  maker,  it  was  still  valid  at 
suit  of  a  bona  fide  holder.5  And  this  is  so  in  the  hands  of  a 
bona  fide  holder  for  value,  even  where  the  note  had  been 
delivered  without  a  stamp,  under  an  agreement  that  it  should 
not  be  used  until  stamped  by  the  maker,  and  had,  notwith- 
standing this  agreement,  been  fraudulently  stamped  and 
negotiated  by  the  payee.6  Where,  however,  it  is  not  in  the 
hands  of  a  bona  fide  holder  for  value,  notice  to  the  holder 
of  the  original  want  of  stamp  and  of  the  absence  of  au- 
thority from  the  maker  to  affix  the  stamp,  will  constitute  a 
good  defense.7  Whether  a  stamp  has  been  used  in  fraud  of 
the  United  States  Revenue  a  second  time,  is  a  question  of  fact 
for  the  jury.8 

As  has  been  already  remarked,  a  note  left  unstamped  might 
be  stamped  in  open  court  at  the  time  of  trial,  if  the  original 
omission  was  without  fraud.9  This  is  true  also  where  the 
omission  was  designed  but  without  fraud,  the  note  having 
been  given  merely  as  a  memorandum.10     The  act  of  June 

xWilley  v.  Robinson,  13  Allen  128  (1868). 

"Green  v.  Lowry,  38  Ga.  548  (1868). 

"Day  v.  Baker,  36  Mo.  125  (1865). 

♦Blackwell  v.  Denie,  23  Iowa  63;  Robinson  v.  Lair,  31  Iowa  9  (1870); 
Sperry  v.  Horr,  32  lb.  184  (1871).  And  the  want  of  a  stamp  will  not  affect 
the  bona  fides  of  the  holder,  Burson  v.  Huntington,  21  Mich.  415  (1870). 

5 Blackwell  v.  Denie,  23  Iowa  63  (1867) ;  Latham  v.  Smith,  45  111.  25  (1867). 

•Anderson  v.  Starkweather,  28  Iowa  409  (1869). 

7  First  Nat.  Bank  v.  Dougherty,  29  Iowa  260  (1870). 

"Rockwell  v.  Hunt,  40  Conn.  328  (1873). 

9  Morris  v.  Morris,  44  Miss.  441  (1870):  Waterbury  v.  McMillan,  46  Miss. 
635  (1872). 

10Redlich  v.  Doll,  54  N.  Y.  234  (1873). 


CANCELLATION    OF    STAMP.  327 

80th,  1864,  providing  for  stamping  in  court,  was  held  to  be 
applicable,  and  the  act  of  March  3d,  1865,  requiring  a  stamp 
to  be  affixed  by  the  collector,  was  held  to  be  inapplicable,  to 
a  note  made  in  1863.1  It  has  been  held,  however,  that  a 
note  made  after  June  30th,  1864,  could  not  be  stamped  in 
open  court.2  When  an  instrument  has  been  thus  stamped,  it 
is  thereby  rendered  valid  from  its  date.3  And  such  stamp- 
ing under  the  statute  by  an  attorney  in  court  has  been  held 
sufficient  without  any  cancellation  of  the  stamp.4  So,  if  a 
stamp  has  been  affixed  by  the  United  States  collector,  it  ren- 
ders the  instrument  valid,  as  if  it  had  been  originally  duly 
stamped.5  And  such  stamping  by  the  collector  is  not  an 
alteration,  and  cures  the  defect  arising  from  a  want  of  stamp, 
although  the  omission  may  have  been  originally  with  design 
to  defraud  the  government.6 

§  212.  Cancellation — Fraudulent  Omission. — The  cancella- 
tion of  a  stamp  has  been  held  sufficient,  where  it  was  merely 
so  defaced  as  to  be  incapable  of  further  use.7  And  a  cancel- 
lation by  the  initials  of  one  only  of  several  joint  makers  has 
been  held  sufficient.8  Whether  a  cancellation  of  a  stamp  by 
the  maker's  initials  was  authorized  by  him  is  a  question 
for  the  jury.9  It  has  also  been  held  to  be  a  sufficient  can- 
cellation, if  the  payee's  initials  are  used  instead  of  the 
maker's.10    And  if  stamped  in  court  and  the  stamp  canceled 

'Garland  v.  Lane,  46  N.  H.  245  (1865). 

2Whigham  v.  Pickett,  43  Ala.  140  (1869).  But  in  Tobey  v.  Chipman,  13 
Allen  123  (1866),  it  was  held  to  apply  to  a  note  dated  August  1st,  1864,  so  as 
to  cure  the  defect  of  an  omission  of  stamp  made  without  fraud.  See,  too, 
U.  S.  Stats.  1866  c.  184. 

3Dorris  v.  Grace,  24  Ark.  326  (1866). 

4 Blunt  v.  Bates,  40  Ala.  470  (1867).  As  to  whether  the  attorney  of  the 
payee  can  be  obliged  to  testify  whether  the  note  was  stamped  before  deliv- 
ery, see  Wheatley  v.  Williams,  1  M.  &  W.  533. 

'Aldrich  v.  Hagan,  50  N.  H.  60  (1870) ;  Gibson  v.  Hibbard,  13  Mich.  214 
(1865) ;  Long  v.  Spencer,  78  Penna.  St.  303  (1875). 

•Crews  v.  Farmers'  Bank,  31  Gratt.  348  (1879). 

'Taylor  v.  Duncan,  33  Tex.  440  (1870). 

"Spear  v.  Alexander,  42  Ala.  572  (1868). 

'Rees  v.  Jackson,  64  Penna.  St.  486  (1870). 

"Schultz  v.  Herndon,  32  Tex.  390  (1869). 


328  FORM COMPLETION  OF  CONTRACT. 

without  any  initials,  this  has  been  held  sufficient.1  Indeed, 
if  the  cancellation  of  a  stamp  has  been  omitted  altogether, 
this  omission  furnishes  no  defense  on  the  maker's  part,  as 
such  omission  could  only  be  the  maker's  own  wrong.2 

Fraud  is  never  to  be  presumed  in  case  of  the  omission  of 
a  stamp,  but  must  be  clearly  proved.3  Indeed,  it  has  been 
held  that  in  case  of  such  omission,  there  is  a  presumption  of 
good  faith  on  the  maker's  part.4  Although  the  omission  has 
been  said  to  be  prima  facie  intentional.6  It  is  only  fraudu- 
lent omissions  that  render  an  instrument  void  or  inadmissi- 
ble in  evidence. 

§  213.  Clause  Avoiding  for  Want  of  Stamp  Unconstitu- 
tional.— The  United  States  Revenue  Act  has  been  held  to  be 
unconstitutional  so  far  as  it  rendered  a  bill  of  exchange  void 
for  want  of  a  stamp  ;6  and  so  far  as  it  rendered  an  unstamped 
deed  void.7 

But,  as  has  been  said,  the  omission  of  a  stamp  did  not  ren- 
der the  instrument  void  under  the  act  of  Congress,  unless  it 
was  fraudulent  in  its  purpose.8  This  is  true  both  as  to  the 
clause  avoiding  the  instrument  and  as  to  the  penal  clause.9 

'Foster  v.  Holley,  49  Ala.  593  (1873). 

2Mogelin  v.  Westhoff,  33  Tex.  788  (1871) ;  Desmond  v.  Norris,  10  Allen  250 
(1865) ;  nor  does  it  affect  its  admissibility  in  evidence,  Jacobs  v.  Cunning- 
ham, 32  Tex.  774  (1870) ;  Schultz  v.  Herndon,  lb.  390  (1869). 

3 Moore  v.  Quick,  105  Mass.  49  (1870) ;  Craig  v.  Dimock,  47  111.  308  (1868) ; 
Morris  v.  Morris,  44  Miss.  411  (1870);  Waterbury  v.  McMillan,  46  Miss.  635 
(1872). 

4  Baker  v.  Baker,  6  Lans.  509  (1872);  Grant  v.  Conn.  Mut.  Ins.  Co.,  29 
Wise.  125  (1877);  New  Haven  Co.  v.  Quintard,  6  Abb.  Pr.  (n.  s.)  128  (1869)  ; 
Ricord  v.  Jones,  33  Iowa  26  (1871) :  Weltner  v.  Riggs,  3  W.  Va.  445  (1869). 

5  Howe  v.  Carpenter,  53  Barb.  382  (1869). 

6 Hunter  v.  Cobb,  1  Bush  239  (1866) ;  Craig  v.  Dimock,  47  111.  308  (1868); 
Burson  v.  Huntington,  21  Mich.  415  (1870). 

7  Moore  v.  Moore,  47  N.  Y.  467  (1872). 

"Dudley  v.  Wills,  55  Me.  145  (1867);  Cabbott  v.  Radford,  17  Minn.  320 
(1871) ;  Whigham  v.  Pickett,  43  Ala.  140  (1869) ;  State  v.  Hill,  30  Wise.  416 
(1872) ;  Atkins  v.  Plympton,  44  Vt.  21  (1871) ;  even,  it  seems,  though  it  was 
intentional,  Patterson  v.  Gile,  1  Col.  200  (1870).  Indeed,  an  omission  with- 
out fraud  affects  neither  the  validity  of  an  instrument  nor  its  admissibility 
in  evidence,  Bowen  v.  Byrne,  55  111.  467  (1870) ;  Craig  v.  Dimock,  47  lb.  308 
(1868) ;  Bunker  v.  Green,  48  lb.  243  (1868) ;  Hanford  v.  Obrecht,  49  lb.  146; 
Maynard  v.  Johnson,  2  Nev.  16  (1866). 

9Green  v.  Holway,  101  Mass.  243  (1869) ;  Baker  v.  Baker,  6  Lans.  509 
(1872);  Frink  v.  Thompson,  4  lb.  486  (1869);  Works  v.  Hershey,  35  Iowa 


ADMISSIBILITY    IN    EVIDENCE.  329 

It  is  plain,  therefore,  that  the  omission  of  a  stamp  by  the 
maker's  agent  and  against  his  direction,  inadvertently,  would 
have  no  effect  to  avoid  the  instrument.1  It  has  been  held 
that  an  omission  of  a  stamp  invalidates  the  instrument,  even 
without  fraudulent  intent.2  This  is  not  supported,  however, 
by  the  weight  of  authority. 

On  an  indictment  for  forgery,  the  fact  that  the  instrument 
was  not  stamped  has  been  held  to  constitute  no  defense  in 
England.3  The  same  principle  appears  to  have  been  held 
in  the  United  States,  an  indictment  for  sucli  forgery  being 
there  held  sufficient  without  any  allegation  that  the  instru- 
ment was  stamped.  This  conclusion  seems  to  have  been  de- 
rived from  the  rule  that  the  unstamped  instrument  would  be 
void  only  by  reason  of  a  fraudulent  omission  of  the  stamp.4 
The  contrary  was  held,  however,  in  Texas,  on  the  ground 
that  the  crime  of  forgery  could  not  be  complete  until  the 
instrument  was  stamped.5 

§  214.  Admissibility  in  Evidence — Pleading-. — Where  there 
has  been  no  fraud  in  the  omission  of  the  stamp,  the  instru- 
ment has  been  held  to  be  admissible  in  evidence  without  it.6 
Likewise,  on  proof  of  omission  by  mistake  ;7  or  even  without 
any  such  proof,  unless  fraud  was  affirmatively  shown.8  It 
has  been  held,  on  the  other  hand,  that  an  unstamped  note 

340  (1872);  Ricord  v.  Jones,  33  lb.  26  (1871);  Weltner  v.  Riggs,  3  W.  Va. 
445  (1869).  This  is  true  also  as  to  other  contracts,  Vorebeck  v.  Roe,  50  Barb. 
302  (1867) ;  Morgan  v.  Graham,  35  Iowa  213  (1872) ;  Mitchell  v.  Home  Ins., 
82  lb.  421. 

1  Vaughan  v.  O'Brien,  57  Barb.  491  (1870). 

2 Hugos  v.  Strickler,  19  Iowa  414  (1865).  This  was  not  the  case  of  a  bill  or 
note.  See,  too,  Wayman  v.  Torreyson,  4  Nev.  124  (1868),  where  the  ad- 
ministrator of  the  make]*  was  not  allowed  after  the  maker's  death  to  affix  a 
stamp. 

3  Rex  v.  Hawkswood,  3  East  P.  C.  955 ;  Rex  v.  Teagoe,  2  lb.  79. 

4State  v.  Hill,  30  Wise.  146  (1872).  This  case  overrules  John  v.  State,  23 
lb.  504  (1868). 

&Horlon  v.  State,  32  Tex.  79  (1869). 

'Oxford  Iron  Co.  v.  Spradley,  51  Ala.  171  (1874) ;  Perryman  v.  Greenville, 
26.507;  Emery  v.  Hobson,  63  Me.  33  (1873);  Black  v.  Woodrow,  39  Mrl  194 
L873) :  Bowent).  Byrne,  55  [11.467  (1870) ;  Craig  v.  Dimoek,  47  lb.  308  l  1868); 
Bunker  v.  Green,  4S  lb.  243  (1868). 

'Beehe  v.  Hutton,  47  Barb.  187  (1866). 

■Timp  v.  Dockham,  29  Wise.  440  (1872). 


330  FORM COMPLETION  OF  CONTRACT. 

could  not  be  admitted  in  evidence,  even  in  a  State  court,, 
until  it  was  properly  stamped;1  and  that  the  contents  of  an 
unstamped  agreement,  which  has  been  lost,  could  not  be 
proved  at  all.2 

But  it  seems  unnecessary  to  set  out  the  stamp  or  the  fact 
that  the  instrument  was  stamped  in  the  pleadings,  and  the 
failure  to  make  this  appear  in  a  declaration  is  not  ground 
for  demurrer  ;3  even  though  the  declaration  purport  to  set 
forth  a  copy  of  the  note  and  make  no  mention  of  a  stamp 
upon  it.4  So,  the  mere  omission  of  a  stamp  cannot  be 
pleaded  in  defense,  unless  the  plea  also  show  that  the  instru- 
ment cannot  be  made  good  by  stamping  it  before  trial.5  The 
stamp  is  no  part  of  a  bill  or  note,  and  need  not  appear  in  the 
case  after  verdict  rendered.6  And  the  omission  of  a  stampr 
in  like  manner,  on  appeal  papers  is  immaterial,  except  in 
case  of  fraud.7 

The  want  of  a  stamp  has  been  held  to  render  the  un- 
stamped instrument  inadmissible  in  evidence,  even  in  a  State 
court,8  until  it  has  been  properly  stamped  by  the  collector.9 
On  the  other  hand,  the  act  of  Congress  has  been  generally 
held,  so  far  as  relates  to  evidence,  to  apply  only  to  the  United 
States  courts.10     And  so  far  as  it  required  a  stamp  upon  the 

xPlessinger  v.  Dupuy,  25  Ind.  419  (1865). 

"Turner  v.  State,  48  Ala.  549  (1872). 

3Cabbott  v.  Radford,  17  Minn.  320  (1871). 

4  Trull  v.  Moulton,  12  Allen  396  (1866) ;  Campbell  v.  Wilcox,  10  Wall.  421 
(1870). 

5Byles  119;  Bradley  v.  Bardsley,  15  L.  J.  Ex.  115;  3  D.  &  L.  476;  14  M.  & 
W.  873.  See,  however,  Lazarus  v.  Cowie,  3  Q.  B.  465 ;  Tattersall  v.  Fearnly, 
17  C.  B.  368. 

6 Owsley  v.  Greenwood,  18  Minn.  429  (1872). 

7  Harper  v.  Clark,  17  Ohio  St.  190  (1867). 

8Chartiers  Turnpike  v.  McNamara,  72  Penna.  St.  281  (1873);  Tripp  v. 
Bishop,  56  Penna.  St.  424  (1868) ;  Jones'  Appeal,  62  lb.  324  (1869) ;  City  of 
Muscatine  v.  Sterneman,  30  Iowa  526  (1870);  Musselman  v.  Mank,  18  lb. 
239;  Botkins  v.  Spurgeon,  20  lb.  598;  Doud  v.  Wright,  22  lb.  337;  Cedar 
Rapids  R.  R.  v.  Stewart,  25  lb.  117 ;  McLearn  v.  Skelton,  18  La.  An.  514 
(1866). 

9Corrie  v.  Estate  of  Billier,  23  La.  An.  250  (1871). 

10Carpenter  v.  Snelling,  97  Mass.  452  (1867) ;  Lynch  v.  Morse,  lb.  458 ;  Peo- 
ple v.  Gates,  43  N.  Y.  40  (1870) ;  Griffin  v.  Ranney,  35  Conn.  239  (1868) ; 
Green  v.  Holway,  101  Mass.  243  (1869) ;  Sporrer  v.  Eifler,  1  Heisk.  633  (1870) ; 
Bowen  v.  Byrne,  55  III.  467  (1870) ;  Rockwell  v.  Hunt,  40  Conn.  328  (1873); 


ACTION    ON   ORIGINAL    CONSIDERATION".  331 

process  of  a  State  court,  it  was  held  at  an  early  day  to  be 
unconstitutional.1 

§  215.  Action  on  Original  Consideration — How  Affected. — 
Where  the  omission  of  a  stamp  is  set  up  in  defense  by  the 
maker  at  suit  of  the  payee  of  a  note,  recovery  may  be  had 
on  the  original  consideration.2  And  in  an  action  on  the 
original  consideration,  an  unstamped  note  given  for  it,  is  ad- 
missible in  evidence  for  the  purpose  of  showing  the  date 
of  the  transaction  at  least.3  It  is  also  to  be  observed  that 
the  want  of  a  stamp  upon  an  instrument  at  the  time  of 
its  delivery  furnishes  no  evidence  to  rebut  the  presump- 
tion that  the  transfer  to  the  holder  was  for  valuable  consid- 
eration.4 

It  has  been  held  in  England  that  an  instrument  may  be 
admitted  in  evidence  without  a  stamp  for  collateral  purposes, 
such  as  to  negative  an  allegation  of  payment;5  or  to  refresh 
the  memory  of  a  witness;6  or  to  corroborate  a  witness;7  or 
to  prove  fraud;8  or  usury;9  or  to  prove  an  agreement 
illegal  ;10  or  to  show  that  a  former  agreement  has  been  re- 
scinded.11 But  it  is  not  admissible  in  order  to  show  the 
payee's  assent  to  the  cancellation  of  an  original  acceptance;12 

Sammons  v.  Halloway,  21  Mich.  162  (1870) ;  Burson  v.  Huntington,  76.  415; 
Weltner  v.  Biggs,  3  W.  Va.  445  (1869) ;  Forcheimer  v.  Holly,  14  Fla.  239 
(1872).  So,  too,  in  other  contracts,  United  States  Exp.  Co.  v.  Haines,  48  111. 
248  (1868) ;  Clemens  v.  Conrad,  19  Mich.  170  (1869) ;  Davis  v.  Richardson,  45 
Miss.  499  (1871). 

1  Warren  v.  Paul,  22  Ind.  276  (1864) ;  Fifield  v.  Close,  15  Mich.  505  (1867). 

2  Wilson  v.  Carey,  40  Vt.  179  (1868) ;  Humphreys  v.  Wilson,  43  Miss.  328 
(1870). 

3 Israel  v.  Redding,  40  111.  362  (1866). 

4  Long  v.  Spencer,  78  Penna.  St.  303  (1875). 

'Smart  v.  Nokes,  6  Man.  &  G.  911. 

6 Maugham  v.  Hubbard,  8  B.  &  C.  14. 

7 Dover  v.  Maestaer,  5  Esp.  92. 

8Byles  117;  Gregorys.  Fraser,  3  Campb.  454.  See,  too,  Holmes  v.  Six- 
Bmith,  7  Exch.  802;  Watson  v.  Poulson,  15  Jur.  1111;  Keable  v.  Payne  8 
Ad.  &  El.  555;  Reg.  v.  Gompertz,  9  Q.  B.  824. 

•Nash  v.  Duncomb,  1  M.  &  Rob.  184. 

10Coppock  v.  Bower,  4  M.  &  W.  361. 

"Reed  v.  Deere,  7  B.  &  C.  261 ;  and  see  Swears  v.  Wills,  1  Esp.  317. 

"Sweeting  v.  Halse,  9  B.  &  C.  365;  4  M.  &  R.  287. 


332  FORM COMPLETION  OF  CONTRACT. 

or  to  take  a  promise  out  of  the  Statute  of  Limitations;1  or 
to  prove  an  admission  of  a  party  to  the  suit.2 

The  American  decisions  above  referred  to  have  now  no 
application  to  commercial  instruments  drawn  in,  or  governed 
by,  the  laws  of  the  United  States.  For  a  fuller  statement 
of  the  English  cases  interpreting  the  English  Stamp  Acts 
the  reader  is  referred  to  the  learned  and  exhaustive  chapter 
of  Mr.  Justice  Byles  on  this  subject.3 

1  Jones  v.  Ryder,  4  M.  &  W.  32 ;  and  see  Holmes  v.  MacKrell,  3  0.  B.  (n.  s.) 
789. 

2 Byles  117;  or  as  a  payment,  Wilson  v.  Vysar,  4  Taunt.  288;  Jardine  v. 
Payne,  1  B.  &  Ad.  663;  and  where  payment  was  made  by  an  unstamped 
bill,  the  indorser  was  held  not  to  be  entitled  to  formal  notice  of  its  subse- 
quent dishonor,  Cundy  v.  Marriott,  1  B.  &  Ad.  696. 

3  Byles  104  etseq. 


DELIVERY    NECESSARY.  333 


n.    DELIVERY. 

216.  Necessity  for  Delivery. 

217.  Pleading — Evidence — Presumptions. 

218.  Delivery — By  Mail — In  Sealed  Envelope. 

219.  Constructive. 

2id0.  Intention  Necessary — Mistake — Fraud. 

221.  After  Death  or  Dissolution  of  Firm. 

222.  To  Agent. 

224.  Instrument  Takes  Effect  From. 

225.  On  Sunday. 

227.  On  Condition — In  Escrow. 

230.  Want  of— As  a  Defense. 

231.  Parol  Evidence  as  to. 

§  216.  Delivery  Necessary. — Commercial  paper,  like  other 
written  contracts,  takes  effect  and  is  completed  only  by 
delivery.1  This  is  true,  not  only  of  the  principal  contract 
on  the  face  of  the  note  or  bill,  but  also  of  the  indorsement.2 
Thus,  a  note  may  be  indorsed  by  the  payee  without  effecting 
a  transfer  so  long  as  it  remains  in  his  hands.3  And  the  in- 
dorsement should  be  made  to  the  indorsee  as  such.4  Mere 
signature  by  a  stranger  as  indorser  in  the  payee's  presence 

'1  Daniel  73;  1  Parsons  48;  Brind  v.  Hampshire,  1  M.  &  W.  365  (1836) 
Marston  v.  Allen,  8  lb.  494  (1841);  Lansing  v.  Gaine,  2  Johns.  300  (1807) 
Marvin  v.  McCullum,  20  lb.  288  (1822) ;  Powell  v.  Waters,  8  Cow.  687  f  1826) 
Howe  v.  Ould,  28  Gratt.  1  (1876) ;  Carter  v.  McClintock,  29  Mo.  464  (I860) 
Lawrence  v.  Bassett,  5  Allen  141  (1862) ;  Curtis  v.  Gorman,  19  111.  141  (1857) 
Thomas  v.  Watkins,  16  Wis.  549  (1863) ;  Chamberlain  v.  Hopps,  8  Vt.  94 
(1836) ;  Prather  v.  Zulauf,  38  Ind.  155  (1871) ;  Jones  v.  Deyer,  16  Ala,  221 
(1849). 

■Lysaght  v.  Bryant,  9  C.  B.  46  (1850);  Adams  v.  Jones,  12  Ad.  &  El.  455 
(1840);  King  v.  Lambton,  5  Price  428  (1818);  Clark  v.  Boyd,  2  Ohio  56 
(1825);  Brind  v.  Hampshire,  supra;  Ex  parte  Cote,  L.  R.  9  Ch.  App.  27 
(1873);  Dana  v.  Norris,  24  Conn.  333  (1856);  Richards  v.  Darst,  51  111.  140 
(1869) ;  Mott  v.  Wright,  4  Biss.  C.  C.  53  (1865) ;  May  v.  Cassiday,  7  Ark.  376 
(1847). 

3Mendenhall  v.  Baylies,  47  Ind.  575  (1874) ;  Wulschner  v.  Sells,  87  lb.  71 
(1882).  And  if  a  note  is  made  payable  to  A.  for  a  debt  due  to  her  father, 
B.,  and  at  his  request,  and  is  taken  by  her  without  his  knowledge  from  bis 
private  papers,  there  is  no  valid  transfer  or  delivery  to  A.,  although  her 
father's  indorsement  might  not  have  been  necessary  to  a  note  drawn  in  such 
form,  Hatton  v.  Jones,  78  Ind.  466  (1881).  So,  too,  Fanning  v.  Russell,  94 
111.  386  (1880),  where  a  note  of  like  tenor  was  taken  from  the  father's  papers 
after  his  death;  and  Foglesang  v.  Wickard,  75  Ind.  258  (1881),  where  the 
note  was  made  payable  to  the  father  and  indorsed  by  him  with  the  intention 
of  a  gift,  but  never  completed  by  delivery,  and  it  was  taken  by  the  daughter 
after  his  death  from  his  papers. 

*  Adams  v.  Jones,  12  Ad.  &  El.  455  (1840) ;  Brind  v.  Hampshire.  1  M.  &  W. 
365  (1836) ;  Marston  v.  Allen,  8  M.  &  VV.  494  (1841). 


334  FORM COMPLETION  OF  CONTRACT. 

after  the  note  is  executed  and  delivered  to  the  payee,  does 
not,  of  itself,  amount  to  a  redelivery,  and  involves  no  lia- 
bility on  the  indorsees  part  without  a  fresh  consideration.1 

It  is  likewise  true  that  delivery  is  necessary  to  the  com- 
plete acceptance  of  a  bill,  and  an  acceptance  written  upon  a 
bill  may  be  canceled  before  its  delivery  and  remain  of  no 
effect.2  So,  writing  an  acceptance  on  an  incomplete  bill  is 
of  no  effect  until  the  bill  is  completed  and  delivered.3  It  is 
said,  however,  that  an  acceptance  may  take  effect  without  de- 
livery if  the  acceptor  detains  the  bill  in  his  possession  for  an 
unreasonable  length  of  time.4  And  this  is  sometimes  pro- 
vided by  statute.6  But  the  certification  of  a  check  by  a  ban'k 
onlv  takes  effect  when  the  certified  check  is  redelivered  to  the 
holder,  and  if  it  is  so  delivered  after  notice  to  the  bank  of 
defense  on  the  drawer's  part,  and  the  bank  subsequently 
pays,  it  will  do  so  at  its  own  peril.6 

§  217.  Delivery — Pleading — Evidence. — Delivery  need  not 
be  specially  averred  in  the  declaration  upon  a  note  or  bill. 
The  word  "promised"  or  "made"  sufficiently  implies  de- 
livery in  pleading.7 

Delivery  is  in  general  presumed  from  possession  of  the 
bill  or  note.8  And  even  where  a  note  originally  payable  to 
"A.  or  bearer,"  is  in   the  possession  of  C.  indorsed  by  B., 

'Williams  v.  Williams,  67  Mo.  661  (1878). 

2  Cox  v.  Troy,  1  D.  &  R.  38  (1822) ;  S.  C,  5  B.  &  Aid.  474,  overruling  Thorn- 
ton v.  Dick,  4  Esp.  270  (1803).  See,  to  like  effect,  Bank  of  Van  Dieman'a 
Land  v.  Victoria  Bank,  L.  R.  3  P.  C.  526  (1871).  But  in  Smith  v.  McClure,  5 
East  477,  the  acceptance  of  a  bill  was  held  to  be  perfect  without  redelivery 
by  the  acceptor  to  the  payee.  And  see  Story  on  Bills  \  203  n.;  Chitty  198. 
But  an  acceptance  written  on  an  order  but  never  delivered,  is  no  payment  of 
the  debt  for  which  the  order  was  drawn,  Dunavan  v.  Flynn,  118  Mass.  537  (1875). 

*Ex  parte  Hayward,  L.  R.  6  Ch.  App.  546  (1871). 

4 Smith  v.  McClure,  5  East  477. 

6 See  Chapter  on  Acceptance. 

6Freund  v.  Imp.  and  Traders'  Nat.  Bank,  3  Hun  689  (1875). 

7Cburchill  v.  Gardner,  7  T.  R.  596;  Binney  v.  Plumley,  5  Vt.  500  (1833). 
So,  the  allegation  that  defendant  ''indorsed"  implies  delivery,  Chester,  &c, 
R.  R.  Co.  v.  Lickiss,  72  111.  521  (1874).  So,  the  word  "executed,"  Nicholson 
v.  Combs,  90  Ind.  515  (1883). 

81  Daniel  76;  1  Parsons  50;  Woodford  v.  Dorwin,  3  Vt.  82  (1830) ;  Kidder 
v.  Horrobin,  72  N.  Y.  159  (1878).  On  proof  of  the  maker's  handwriting, 
Pate  v.  Brown,  85  N.  C.  166  (1881).  But  see  Lloyd  v.  Sandilands,  Gow.  C.  N. 
P.  15,  where  possession  of  a  cbeck  by  the  payee  was  held  not  to  be  evidence 
of  its  delivery  to  him  by  the  maker. 


DELIVERY    BY    MAIL.  335 

delivery  to  B.  will  be  presumed  from  C.'s  possession.1  So, 
where  a  note  was  found  among  the  papers  of  a  deceased 
payee,  its  proper  delivery  is  to  be  presumed.2  But  if  found 
among  papers  of  a  deceased  person  who  is  a  stranger  to  it  and 
whose  representatives  make  no  claim  to  it,  no  delivery  to  the 
payee  will  be  presumed,  and  delivery  actual  or  constructive 
must  be  shown.3 

Where  a  note  or  bill  is  so  drawn  or  indorsed  as  to  be 
payable  to  bearer  and  transferable  by  delivery,  the  want 
of  delivery  will  constitute  no  defense  to  the  paper  in  the 
hands  of  a  bona  fide  holder.4  So,  where  a  check,  indorsed  in 
blank  by  the  payee,  is  canceled  by  tearing  into  two  pieces, 
and  is  afterwards  put  together  and  transferred  to  a  bona  fide 
holder,  the  want  of  proper  delivery  will  constitute  no  de- 
fense.5 But  where  a  bill  was  indorsed  without  delivery  and 
issued  in  fraud  of  the  indorser,  he  may  show  in  his  defense 
that  the  plaintiff  was  not  a  bona  fide  holder.6 

§  218.  Delivery  by  Mail — In  Sealed  Envelope — Contents 
Unknown. — It  is  not  necessary  to  a  good  delivery  that  it 
should  be  actually  handed  by  one  person  to  another.  It  is 
a  sufficient  delivery  if  the  paper  be  mailed  to  the  payee's 
address.7     In  France  commercial  paper  mailed  in  this  way 

'Cox  v.  Adams,  2  Ga.  158  (1847). 

2Holliday  v.  Lewis,  14  Hun  478  (1878).  But  a  note  payable  "to  A.,  if  she 
called  for  it  before  she  deceased;  if  not,  to  be  paid  to  B.  by  her  order,"  has 
been  held  to  be  B.'s  property  and  recoverable  as  such  from  A.'s  executor, 
although  found  among  A.'s  papers  at  her  death,  Blanchard  v.  Sheldon,  43 
Vt.  512  (1871). 

'Mahon  v.  Sawyer,  18  Ind.  73  (1862).  So,  a  note  intended  for  a  gift,  and 
found  among  waste  papers  of  the  maker  after  her  death,  is  not  presumed 
to  have  been  delivered,  Blanchard  v.  Williamson,  70  111.  647  (1873). 

4Kinyon  v.  Wohlford,  17  Minn.  239  (1871). 

5Ingham  v.  Primrose,  7  C.  B.  (n.  s.)  82  (1859).  But  in  Scholey  v.  Rams- 
bottom,  2  Campb.  485,  a  check  torn  into  four  pieces,  afterward  pasted 
together  and  much  soiled,  was  held  to  carry  notice  on  its  face  sufficient  to 
put  a  purchaser  upon  inquiry,  and  the  bank  paying  the  check  without  in- 
quiry was  held  liable  for  the  amount. 

•Mars ton  v.  Allen,  8  M.  &  W.  4(.»4  (1841).  So  far  as  this  case  appears,  in 
the  opinion  of  Alderson,  B..  to  decide  that  such  defense  cannot  be  set  up 
against  a  bona  fide  holder  it  is  disapproved  as  a  mere  dictum  in  Burson  v. 
Huntington,  '21   Mich.  415  (1870). 

'Sichel  e.  Borch,  2  II.  &  C  956  (1864);  Kirkman  v.  Bank  of  America,  2 
Coldw.  o(J7  (1865)  :  Mitchell  v.  Byrne,  6  Rich.  171  (1853).  Or,  by  mail,  to  a 
husband  for  his  wile.  Funk  v.  Lawson,  12  Bradw.  229  (1882). 


336  FORM COMPLETION  OF  CONTRACT. 

is  revocable  until  actually  sent  off  by  the  post  office,  and 
there  is  therefore  no  delivery  until  that  occurs.1  Giving 
a  note  to  the  maker's  agent,  e.  g.  to  the  purser  of  a  Havana 
steamer,  addressed  to  the  payee  in  New  Yo,rk,  to  be  mailed 
by  the  purser  on  the  arrival  of  the  steamer  in  New  York, 
is  not  a  delivery.2  Nor  is  it  a  sufficient  delivery  to  place  a 
package  of  bills  and  notes  so  addressed  in  the  hands  of  a 
servant  to  be  delivered  to  the  postman  next  morning.3  On 
the  question  as  to  what  local  law  governed  a  note,  it  was  held 
in  England  that  a  note  payable  at  Norwich  and  mailed  to  the 
payee,  addressed  to  that  place,  was  delivered  there,  and  not 
where  it  was  mailed.4  But  a  bill  of  exchange,  signed  and 
indorsed  in  Ireland  in  blank  and  transmitted  in  that  form  to 
England,  was  held  to  be  an  Irish  contract  not  requiring  an 
English  stamp.5  On  the  other  hand,  an  acceptance  signed 
in  L.  and  sent  by  messenger  to  the  payee  in  E.,  w-as  held  to 
have  been  delivered  in  E.,  the  messenger  in  this  case  being 
plainly  the  acceptor's  agent.6  But  if  a  note  is  drawn  in  Ohio 
for  an  insurance  policy  to  be  issued  in  New  York,  and  the  note 
is  sent  to  New  York  and  the  policy  issued  there,  it  will  be 
considered  a  New  York  note  delivered  there  and  not  in  Ohio.7 
Merely  leaving  a  note  on  the  payee's  desk  without  his 
knowledge,  constitutes  no  delivery  of  the  paper  unless  he 
afterwards  receives  it.8     But  a  note  may  be  delivered  to  the 

lEx  parte  Cote,  L.  R.  9  Ch.  App.  27  (1873).  This  is  the  case  also  in  Eng- 
land until  the  complete  paper  is  mailed.  If  the  paper  is  cut  into  two  pieces 
for  safety  (a  common  practice  in  England,  at  least,)  and  half  of  it  sent  by 
mail,  it  is  revocable,  and  therefore  not  delivered  until  the  other  half  is  sent, 
Smith  v.  Mundy,  29  L.  J.  Q.  B.  172  (1860).  See,  too,  Redmayne  v.  Burton, 
2L.  T.  (n.  s.)  324  (1860). 

2Muller  v.  Pondir,  55  N.  Y.  325  (1873),  affirming  6  Lans.  472  (1872). 

3King  v.  Lambton,  5  Price  428  (1818).  So,  putting  a  bill  addressed  to  the 
payee  in  an  office  letter-box,  from  which  it  is  stolen  before  it  can  be  mailed, 
is  no  delivery,  Arnold  v.  Cheque  Bank,  L.  R.  1  C.  P.  D.  584  (1876). 

4  Wilde  v.  Sheridan,  21  L.  J.  Q.  B.  260  (1852). 

5Snaith  v.  Mingay,  1  M.  &  S.  87  (1813).  So,  a  bill  signed  abroad  and  sent 
to  drawer's  agent  in  London,  Barker  v.  Sterne,  9  Exch.  683  (1854). 

6Buckley  v.  Hann,  5  Exch.  43  (1856). 

7 Hyde  v.  Goodnow,  3  N.  Y.  266  (1850). 

8Kinne  v.  Ford,  52  Barb.  194(1868);  Chicopee  Bank  v.  Phila.  Bank,  8 
Wall.  641  (1869).  In  this  case  it  was  held  that  a  bill  left  in  a  letter  on  the 
desk  of  a  bank  cashier,  and  lost  in  a' crack  of  the  desk  before  it  reached  his 
hands,  was  not  sufficiently  presented. 


CONSTRUCTIVE    DELIVERY.  337 

payee  without  bis  knowing  its  contents,  e.  g.  in  a  sealed 
envelope;  and  if  for  value  and  so  expressed,  this  will  be  a 
sufficient  delivery  to  support  a  recovery  after  the  maker's 
death.1  If,  however,  it  is  merely  left  among  the  maker's 
papers  in  an  envelope  directed  to  the  payee,  and  is  intended 
to  operate  as  a  legacy  without  the  formalities  required  in  a 
will,  it  will  not  be  binding  upon  the  maker's  estate.2 

§  219.  Constructive  Delivery. — Delivery  may  be  con- 
structive instead  of  actual.  Thus,  an  order  directing  its 
delivery  by  the  person  holding  the  instrument  as  collateral 
or  in  escrow  will  amount  to  the  same  thing  as  an  actual 
delivery  of  the  paper.3  So,  executing  a  transfer  of  a  bill  or 
note  which  is  in  the  hands  of  a  pledgee,  will  amount  to  a 
delivery  of  it  at  the  time  of  the  transfer,  subject,  of  course, 
to  the  rights  of  the  pledgee.4  So,  an  agreement  with  the 
maker  for  the  settlement  of  a  note  for  less  than  its  face,  is 
constructively  a  redelivery  of  it  to  him.5  But  an  agreement 
for  the  delivery  of  a  certain  bill  of  exchange  in  pledge,  on 
the  arrival  of  the  steamer  by  which  it  had  been  forwarded, 
constitutes  only  an  equitable  delivery  and  is  subject  to  all 
equities  existing  against  the  payee  who  made  the  agreement, 
and  such  a  bill  may  be  stopped  in  transitu  by  the  drawer 
before  its  actual  delivery  under  the  agreement.6 

1  North  v.  Case,  2  Lans.  264  (1869),  affirmed  as  Worth  v.  Case,  42  N.  Y.  362 
(1870).  The  envelope  in  this  case  was  indorsed  "Not  to  be  unsealed  while 
I  live  and  returned  to  me  any  time  I  may  wish  it." 

2Gough  v.  Findon.  7  Exch.  48  (1851).  So,  too,  a  note  found  among  the 
maker's  papers  at  his  death  payable  to  his  brother,  but  never  delivered  to 
hi'n  or  brought  in  any  wav  to  his  knowledge,  has  no  validity  as  a  note  or 
debt  of  the  maker,  Disher  v.  Disher,  1  P.  Wins.  204  (1712). 

3 Howe  v.  Ould,  28  Graft.  1  (1876). 

'Fisher  v.  Bradford,  7  Me.  28  (1830).  Although  the  note  has  not  been 
actually  delivered  to  the  transferee  until  after  its  maturity,  Grimm  v.  War- 
ner, 45  Iowa  106  (1876).  And  a  note  has  been  held  to  be 'sufficiently  deliv- 
ered to  B..  although  payable  to  a  deceased  payee  A.  "if  she  calls  for  it," 
and  found  among  A. 's  papers  at  her  death,  it  being  drawn  "to  be  paid  to  B. 
by  her  order,"  if  A.  did  not  call  for  it.  Blanchard  v.  Sheldon,  43  Vt.  512  (1871). 

5 Stewart  y.  Hidden,  13  Minn.  43  (1868).  So,  if  a  note  is  tendered  in  ac- 
cordance with  an  agreement  to  transfer  it  in  part  payment  for  goods  pur- 
CL»8bd,  and  is  subsequently  burned  while  still  in  the  hands  of  the  purchaser 
oi  the  goods,  this  is  a  sufficient  delivery  to  sustain  an  action  against  the 
maker,  Des  Arts  v.  Leggett,  16  N.  Y.  582  (1858). 

•Muller  v.  Pondir,  55  N.  Y.  325  (1873),  affirming  6  Lans.  472  (1872). 

W 


338  FORM COMPLETION  OF  CONTRACT. 

It  is  not  necessary,  however,  to  a  valid  delivery  that  the 
person  to  whom  the  paper  is  delivered  should  have  any 
beneficial  interest  in  it.  Without  having  any  such  interest 
he  may  maintain  an  action  if  the  paper  has  been  lawfnilv 
delivered  to  him  as  the  holder.1 

§  220.  Intention  to  Deliver  Necessary. — Although  delivery 
is  generally  marked  and  accompanied  by  immediate  change 
of  possession,  this  is  not  of  itself  sufficient  to  make  a  good 
delivery.  An  intention  to  deliver  the  paper  must  accom- 
pany the  act  in  order  to  make  a  complete  and  valid  delivery. 
If  the  paper  be  handed  to  the  payee  for  him  to  look  at,  and 
carried  off  by  him  against  the  maker's  will,  and  in  spite  of 
his  resistance,  there  is  no  delivery  to  him.2 

So,  if  a  signature  be  written  on  blank  paper  merely  foi 
the  purpose  of  identifying  the  handwriting  or  signature, 
handing  such  paper  to  one  who  afterwards  writes  a  note  over 
it,  is  no  delivery ;  and  the  writing  of  the  note  is  a  forgery 
on  which  the  supposed  maker  is  not  even  liable  to  a  bona 
fide  holder.3  So,  if  a  note  be  drawn  in  sport  without  any 
intention  to  deliver  it  as  a  note,  and  be  carried  off  by  the 
payee,  without  the  knowledge  or  against  the  will  of  the 
maker,  it  will  not  constitute  a  delivery.  But  in  such  case 
the  want  of  delivery  cannot  be  set  up  in  defense  to  the  note 
in  the  hands  of  a  bona  fide  holder.4  So,  if  a  note  be  drawn 
and  left  as  a  mere  memorandum  of  an  arrangement  to  be 
made,  this  will  not  be  a  sufficient  delivery  of  it,  and  the 
defense  will  be  available  in  a  suit  brought  by  the  payee.0 
And  in  such  a  case  parol  evidence  of  the  whole  arrangement 
or  contract  is  admissible.6 

'Austin  v.  Birchard.  31  Vt.  589  (1859).  But  a  non-negotiable  instrument, 
delivered  to  a  bailee  for  transmission  merely,  will  not  give  him  such  appar- 
ent title  as  to  render  a  fraudulent  transfer  by  him  effectual,  Midland  R.  R. 
Co.  v.  Hitchcock,  10  Stew.  549  (1883). 

2Carter  v.  McClintock,  29  Mo.  464  (I860). 

3  Caul  kins  v.  Whisler,  29  Iowa  495  (1870). 

♦Shipley  v.  Carroll,  45  111.  285  (1S67).  So  of  a  note  indorsed  in  blark  by 
the  payee  and  stolen  from  his  desk,  Gould  v.  Segee,  5  Duer  260  (1856). 

5Ruggles  v.  Swan  wick,  6  Minn.  526  (1861). 

6Hopper  v.  Eiland,  21  Ala.  714  (1852). 


DELIVERY  AFTER  MAKER'S  DEATH.         339 

Again,  if  a  note  be  delivered  by  the  maker  under  tbe  mis- 
taken idea  tbat  it  is  a  paper  of  different  character,  tbe  mis- 
take being  induced  by  the  payee's  fraud  and  tbe  maker  being 
guilty  of  no  negligence  in  the  matter,  he  will  not  be  liable 
for  it.1  But  if  in  such  case  the  maker  was  guilty  of  negli- 
gence, e.  g.  in  not  reading  the  paper,  he  cannot  avail  himself 
of  the  defense  against  a  bona  fide  holder.2 

Where  a  note,  payable  to  A.  or  bearer,  is  stolen  from  the 
maker  by  B.  before  it  has  been  delivered  to  the  payee,  it  will 
be  void  for  want  of  delivery  in  the  hands  of  a  holder  with 
notice.3  So,  where  a  note  was  left  by  the  maker  on  his  table 
and  carried  off,  without  his  authority  and  without  any  negli- 
gence on  his  part,  by  the  payee,  it  was  held  that  the  want  of 
delivery  constituted  a  good  defense  even  against  a  bona  fide 
purchaser  for  value.4  In  these  cases  the  paper  had  had  no 
valid  inception.  But  a  negotiable  government  bond  stolen 
from  the  owner  can  be  held  against  him  in  an  action  of 
trover  brought  against  a  bona  fide  holder.5 

§  221.  Delivery  After  Maker's  Death — After  Dissolution  of 
Firm. — As  delivery  constitutes  part  of  the  complete  execution 
of  commercial  paper,  it  follows  that  no  delivery  can  be  made 
after  the  death  of  the  maker  by  his  executor.6  So,  if  made 
for  the  accommodation  of  the  payee,  no  delivery  can  be 
made  by  him  after  the  maker's  death.7  So,  a  note  drawn 
payable  to  the  maker's  own  order  cannot  be  delivered  after 

Baylor  v.  Atchison,  54  111.  196  (1870). 

'Chapman  v.  Bose,  56  N.  Y.  137  (1874). 

sHall  v.  Wilson,  16  Barb.  548  (1853). 

4Burson  v.  Huntington,  21  Mich.  415  (1870). 

s  Jones  v.  Nellie,  41  111.  482  (1866). 

'Clark  v.  Sigourney,  17  Conn.  511  (1846).  So,  delivery  by  the  payee  of  a 
note  to  his  sister  to  deliver  to  A.  B.  can  only  be  sustained  as  a  donatio  causa 
mortis, since  otherwise  tbe  authority  given  by  the  payee  to  his  agent  was  re- 
voked by  bis  death,  Sessions  v.  Mosely,  4  Cush.  87  (1849). 

'Perry  y.  Crammond,  1  Wash.  C.  C.  100  (1804).  In  this  case  it  was  said 
by  Washington,  J.,  tbat  delivery  after  the  maker's  death  by  the  payee 
"might  not  be  open  to  objection,"  if  there  had  been  a  valid  consideration 
between  the  maker  and  the  indorsee.  In  like  manner,  an  accommodation 
indorsement  cannot  be  used  after  the  indorser's  death,  and  is  without  effect 
in  the  hands  of  a  purchaser  with  notice,  Smith  v.  Wyckoff,  3  Sandf.  Ch.  77 
(1845). 


340  FORM COMPLETION  OF  CONTRACT. 

his  death  by  the  heir.1  But  it  has  been  held  in  a  recent  case 
that  a  note  delivered  to  A.  to  deliver  after  the  maker's  death 
to  the  payee,  was  sufficiently  delivered,  A.  being  regarded  in 
this  case  as  the  agent  of  the  payee.2 

In  like  manner,  a  partnership  note  cannot  be  delivered 
after  the  dissolution  of  the  partnership.3  And  if  so  delivered 
by  either  partner,  it  will  not  be  binding  on  the  firm,  although 
drawn  before  its  dissolution.* 

§  222.  Delivery — To  an  Agent. — While  a  negotiable  in- 
strument remains  in  the  maker's  hands,  or  in  the  hands  of 
his  agent,  to  whom  it  has  been  given  for  the  purpose  of  de- 
livery, it  is  still  undelivered  and  incomplete.5  Thus,  if  a 
man  draws  a  note  in  Italy  and  sends  it  to  his  agent  in  Eng- 
land for  delivery  there,  it  will  be  of  no  force  until  delivered 
by  the  agent  in  England.6  But  where  a  note  is  indorsed  in 
blank  and  delivered  to  an  agent  for  the  purpose  of  sale,  and 
is  fraudulently  transferred  by  him  as  collateral  for  a  debt  of 
his  own,  the  maker  cannot  set  up  want  of  delivery  against  a 
bona  fide  purchaser  for  value.7  Where,  however,  a  blank 
paper  was  indorsed  by  A.  and  delivered  to  B.  to  obtain  his 
brother's  signature  and  then  deliver  to  C,  and  was  taken  by 
the  brother  from  B.  and  delivered  to  D.  in  settlement  of  a. 
precedent  debt,  such  non-delivery  constitutes  a  good  defense 
against  D.8  And  where  two  persons  are  liable  as  joint  judg- 
ment-debtors, and  a  joint  note  is  executed  by  one  and  deliv- 
ered to  the  other  to  be  signed  by  him  and  negotiated  for  the 
purpose  of  raising  money  to  pay  the  judgment,  and  he  pays 

'Bromage  v.  Lloyd,  1  Exch.  32  (1847). 

biddings  v.  Giddings,  51  Vt.  227  (1878). 

s  Woodford  v.  Dorwin,  3  Vt,  82  (1830). 

♦Gale  v.  Miller,  54  N.  Y.  536  (1874),  affirming  1  Lans.  451,  44  Barb.  420. 

6Brind  v.  Hampshire,  1  M.  &  W.  365  (1836). 

6Chapman  v.  Cottrell,  13  W.  R.  843  (1865). 

7 Morris  v.  Preston,  93  111.  215  (1879). 

"Lenheim  v.  Wilmarding,  55  Penna.  St.  73  (1867),  the  holder  in  such  case 
not  being  held  in  Pennsylvania  to  be  a  holder  for  value  without  notice.  But 
see,  contra,  Whitmore  v.  Nickerson,  125  Mass.  496  (1878),  where  the  note  waa 
delivered  to  the  maker  to  be  signed  by  his  firm  name  and  was  signed  by  hia- 
individual  name,  and  sued  upon  by  a  subsequent  purchaser. 


DELIVERY    TO    AN    AGENT.  341 

the  judgment  but  does  not  negotiate  the  note,  he  cannot  hold 
it  as  a  delivered  note  against  his  co-debtor.1 

§  223.  A  note  may,  however,  be  delivered  to  the  agent  of 
the  payee  or  the  indorsee,  although  the  principal  know  noth- 
ing of  such  delivery  at  the  time.2  So,  it  may  be  delivered 
to  an  attorney  for  the  use  of  the  indorsee;3  or  to  the  payee's 
agent,  subject  to  be  changed  in  form,  to  be  accepted  by  him 
if  not  changed.4  A  good  delivery  may  even  be  made  to  an 
unauthorized  agent,  and  may  be  ratified  subsequently  by  the 
principal.  His  bringing  a  suit  upon  the  instrument  would, 
be  a  ratification  in  such  case.5  And  it  has  been  held  that 
delivery  to  a  father  of  a  promise  to  pay  a  debt  due  the  son 
is  sufficient.6  So,  delivery  to  a  trustee  is  sufficient  delivery 
to  the  cestui  que  trust?  But  where  a  note  is  given  to  an  un- 
authorized agent,  e.  g.  to  a  city  treasurer  for  payment  of  city 
taxes,  this  is  no  sufficient  delivery  of  the  instrument,  unless 
it  is  accepted  by  the  corporation.8 

Neither  can  delivery  of  a  bill  or  note  be  made  to  a  stranger, 
e.  g.  where  the  paper  is  taken  originally  and  discounted  by 
another  person  than  the  payee  named  in  it.9  Where,  how- 
ever, a  note  was  made  for  the  purpose  of  procuring  a  loan, 
which  was  refused  by  the  payee  named  in  it  but  made  by  the 
plaintiff,  he  taking  the  note  from  the  payee,  the  circum- 
stances of  the  loan  were  held  to  be  sufficient  evidence  to 
establish  a  proper  delivery.10 

'Thomas  v.  Watkins,  16  Wis.  549  (1863). 
•Lysaght  v.  Bryant,  9  C.  B.  46  (1850). 
'Richardson  v.  Lincoln,  5  Mete.  201  (1842). 
•Bodley  v.  Higgkis,  73  III.  375  (1874). 
6Ancona  v.  Marks,  7  H.  &  N.  6S6  (1862). 

•Mason  v.  Hyde,  41  Vt.  232  (1868).  So,  a  note  may  be  received  by  mail 
by  a  husband  for  his  wife,  Funk  v.  Lawsou,  12  Bradw.  229  (1882). 

'Tucker  v.  Bradley,  33  Vt.  324  (1860).  But  see  Latter  v.  White,  L.  R.  5  H. 
L.  578  (1872). 

"Crowell  v.  Osborne,  14  Vrooni  335  (1881). 

•First  Nat,  Bank  v.  Strang.  72  111.  559  (1874) ;  Dewey  v.  Cochran,  4  Jones 
184  (1856);  Adams  Bank  v.  Jones,  16  Pick.  574  (1835);  Prescott  v.  Brins- 
ley,  6  Cush.  233  (1850).  And  suit  cannot  be  brought  in  the  payee's  name 
for  the  use  of  such  other  party,  lb.  See,  however,  as  to  actions  on  notes  so 
■delivered,  1  Ames  L.  C.  on  Bills  and  Notes  p.  135. 

10Hayden  v.  Thayer,  5  Allen«162  (1862). 


342  FORM COMPLETION  OF  CONTRACT. 

§  224.  Instrument  takes  Effect  from  Delivery. — As  a  gen- 
eral rule,  contracts  of  a  commercial  character,  like  others,  take 
effect  from  their  delivery  only  j1  although  such  delivery  take 
place  after  the  date  of  the  instrument.2  In  the  absence, 
however,  of  evidence  to  the  contrary,  it  is  presumed  that  a 
bill  or  note  was  delivered  at  the  time  it  bears  date;3  and  if 
accepted  with  no  date  of  acceptance  expressed,  the  acceptance 
is  presumed  to  have  been  made  before  maturity  of  the  bill 
and  within  a  reasonable  time  after  its  date.4  So,  an  indorse- 
ment, without  date  expressed,  is  presumed  to  have  been  made 
and  delivered  before  the  maturity  of  the  instrument.5  In 
reckoning,  however,  the  maturity  of  a  note  payable  a  certain 
time  after  date,  the  expressed  date  and  not  the  time  of  deliv- 
ery is  the  point  to  reckon  from.6  But  if  there  is  no  date 
expressed,  the  maturity  of  such  instrument  can  only  be  reck- 
oned from  the  time  of  its  delivery.7  In  determining  what 
local  law  governs  an  instrument,  respect  is  had  to  its  deliv- 
ery and  not  to  the  place  where  it  was  signed;8  nor  to  the 
place  where  the  loan  out  of  which  it  grew  was  made.9 

1l  Daniel  76  ;  Lansing  v.  Gaine,  2  Johns.  300  (1807) ;  Woodford  v.  Dorwin, 
3  Vt.  82  (1830) ;  Lovejoy  v.  Whipple,  18  Vt.  379  (1816) ;  Hill  v.  Dunham,  7 
Gray  543  (1856) ;  Gale  v.  Miller,  54  N.  Y.  536  (1874).  affirming  1  Lans  451, 
44  Barb.  420;  Baldwin  v.  Freydendall,  10  Bradw.  106  (1881).  And  this  is 
provided  by  statute  in  the  Argentine  Republic  (1862  Cod.  Com.  Art.  767). 

*1  Daniel  76;  1  Parsons  49;  Lansing  v.  Gaine,  2  Johns.  300  (1807).  But 
an  accommodation  note  made  hefore  January  1st,  1852,  but  not  put  into  cir- 
culation until  after,  has  been  held  to  take  effect  from  its  date,  with  reference 
to  a  homestead  exemption  created  in  the  interim,  Ladd  v.  Dudley,  45  N.  H. 
61  (1863). 

31  Daniel  76 ;  1  Parsons  49;  De  la  Courtier  v.  Bellamy,  2  Show.  422;  Giles 
v.  Bourne,  6  M.  &  S.  73  (1817) ;  S.  C,  2  Chitty  300;  Hague  v.  French,  3  Bos. 
&  P.  173  (1802);  Anderson  v.  Weston,  6  Bing.  N.  C.  296  (1840);  Baldwin  v. 
Freydendall,  supra.  So,  as  to  a  statement  of  account,  Sinclair  v.  Bag- 
galey,  4  M.  &  W.  312  (1838).  But  it  seems  that  this  presumption  will  not 
be  made  in  favor  of  a  writing,  e.  g.  a  receipt  indorsed  on  a  bond  taking  it 
out  of  the  operation  of  the  Statute  of  Limitations,  where  the  writer  had  an 
interest  in  falsifying  the  date,  Cremer's  Estate,  5  Watts  &  S.  331. 

'Roberts  v.  Betheli,  12  C.  B.  778  (1852). 

6Smith  v.  Edgeworth,  3  Allen  233  (1861).  In  this  case  the  presumption  was 
overcome  by  proof  of  illegality  of  consideration.  The  jury  may  properly  de- 
termine from  circumstances  attending  the  transfer  of  a  bill  the  time  at  which 
the  indorsement  was  made,  Anderson  v.  Weston,  6  Bing.  N.  C.  296  (1840). 

"Bumpass  v.  Timms,  3  Sneed  459  (1856). 

'Giles  v.  Bourne,  6  M.  &  S.  73  (1817). 

8Mott  v.  Wright,  4  Biss.  C.  C.  53  (1865) ;  Campbell  v.  Nichols,  4  Vroom  81 
(1868) ;  Freese  v.  Brownell,  6  lb.  285  (1871). 

9 Read  v.  Edwards,  2  Nev.  262  (1866). 


DELIVERY    ON    SUNDAY.  343 

As  we  have  already  seen,  in  considering  the  subject  of 
instruments  executed  in  blank,  the  authority  to  fill  such 
blanks  is  only  implied  from  a  proper  delivery  of  the  instru- 
ment, and  does  not  exist  where  the  paper  has  been  stolen 
from  the  maker  before  the  blanks  were  filled.1 

§  225.  Delivery — On  Sunday. — The  question  as  to  the  time 
when  an  instrument  was  delivered  often  becomes  a  matter 
of  importance,  where  the  date  or  delivery  falls  on  a  Sunday. 
Sunday  contracts  are  prohibited  by  statute  in  England  and 
in  most  of  the  United  States.2  A  note  or  bill  made  and  de- 
livered on  Sunday  is,  in  general,  void.3  So,  an  indorsement 
made  and  delivered  on  Sunday.4  This  is  also  true  of  a  con- 
tract for  sale  of  goods;5  even  though  the  delivery  be  made 
on  Sunday  in  carrying  out  a  proposition  made  on  a  week 
day.6  And  it  is  held  in  some  States  that  a  bill  or  note  made 
on  Sunday  cannot  be  ratified  afterwards  on  a  week  day,  being 
void  by  statute.7     This,  however,  is  denied  in  other  States.8 

It  has  been  held  in  Iowa  that  the  date  being  prima  facie 
the  time  of  execution,  a  note  dated  on  Sunday  is  prima  facie 
void.9  And  in  Massachusetts,  where  the  entry  of  a  sale  on 
the  seller's  books  bore  date  on  Sunday,  in  suing  for  the  pur- 

'Ledwich  v.  McKim,  53  N.  Y.  307  (1873). 

"The  Statute  of  29  Car.  II.  c.  7,  provides  that  no  person  "shall  do  or  exer- 
cise any  worldly  business  or  work  of  their  ordinary  calling  upon  the  Lord's 
Day  "  under  a  penalty.  As  to  whether  the  acceptance  of  a  bill  of  exchange 
falls  within  such  prohibition,  see  Begbie  v.  Levi,  1  Croinp.  &  J.  183  (1830). 

3Towle  v.  Larrabee,  26  Me.  464  (1847);  Pattee  v.  Greelv,  13  Mete.  284 
(1847) ;  O'Donnell  v.  Sweeny,  5  Ala.  467  (1843) ;  Dodson  v.  Harris,  10  lb.  566 
(1846);  Bosley  v.  McAllister.  13  Ind.  565  (1859) ;  Brimhall  v.  Van  Campen, 
8  Minn.  13  (1862)  ;  Adams  v.  Hamell,  2  Doug.  73  (Mich.  1845),  although  this 
is  Baid  not  to  be  true  at  common  law. 

'Saltmarsh  v.  Tuthill,  13  Ala.  390  (1848). 

5  Lyon  v.  Strong,  6  Vt,  219  (1834);  Berrill  v.  Smith,  2  Miles  402  (1840); 
Banks  v.  Werts,  13  Ind.  203  (1859). 

6Smith  v.  Foster,  41  N.  H.  215  (I860). 

'Day  v.  McAllister,  15  Gray  433  (1860).  So,  too,  obiter,  as  to  a  contract 
for  land,  Butler  v.  Lee,  11  Ala.  885  (1847).  So,  too,  Banks  v.  Werts,  13  Ind. 
359). 

■Love  v.  Wells,  25  Ind.  503  (1865);  dough  v.  Davis,  9  N.  H.  500  (1838); 
Smith  v.  Case,  2  Oregon  190  (1866).  Especially  if  the  action  rests  partly  on 
fraudulent  representations  made  on  a  week  day  inducing  a  Sunday  sale 
which  was  afterward  ratified,  Winchell  v.  Carey,  115  Mass.  560  (1874). 

■Sayre  v.  Wheeler,  31  Iowa  112  (1870). 


344  FORM COMPLETION  OF  CONTRACT. 

chase-money  he  was  required  to  show  that  the  contract  was 
not  made  on  Sunday.1  On  the  other  hand,  it  has  been  held 
that  the  fact  of  a  note  being  signed  and  dated  on  Sunday  is 
no  evidence  of  its  delivery  on  that  day,  and  that  it  was  prima 
facie  a  valid  contract.2  So,  in  Massachusetts  and  in  Maine, 
where  the  legal  Sunday  ends  by  statute  at  sunset,  it  is  held 
that  the  date  of  a  note  on  Sunday  is  no  evidence  of  its  exe- 
cution before  sunset,  and  that  it  is  therefore  prima  facie  valid;3 
the  time  of  delivery  in  such  case  being  a  question  for  the 
jury  to  determine.4  Where  a  bill  is  dated  and  drawn  on 
Sunday  and  the  acceptance  is  not  dated,  it  will  not  be  pre- 
sumed to  have  been  accepted  on  Sunday.6 

§  226.  Where  a  bill  or  note  is  dated  on  Sunday,  delivery 
on  another  day  may  in  all  cases  be  shown.6  It  has  been 
held,  however,  that  an  indorsement  by  way  of  guaranty,  de- 
livered to  the  maker  on  a  Sunday,  is  void  even  where  the 
note  was  subsequently  delivered  on  a  week  day  by  the  maker 
to  an  innocent  payee,  the  payee  not  occupying  the  position 
of  a  bona  fide  purchaser  for  value.7  But  where  a  note  made 
upon  Sunday  is  dated  on  a  week  day,  it  is  valid  in  the  hands 
of  a  bona  fide  purchaser  for  value.8  And  where  it  was  merely 
signed  on  Sunday  but  delivered  on  a  week  day,  it  follows, 
from  what  has  been  already  said,  that  it  is  valid;9  even 
though  the  delivery  was  made  by  an  agent  who  received  his 
authority  from  the  maker  on  Sunday.10  A  fortiori,  where 
the  date  and  delivery  both  fall  on  a  week  day,  the  note  is 

Austin  v.  Rogers,  11  Cush.  346  (1853). 

"Dohoney  v.  Dohoney,  7  Bush  217  (1870). 

8Nason  v.  Dinsmore,  34  Me.  391  (1852). 

4Hill  v.  Dunham,  7  Gray  543  (1856). 

8Begl)ie  v.  Levi,  1  Cromp.  &  J.  180  (1830). 

6Aldridge  v.  Branch  Bank,  17  Ala.  45  (1849). 

'Gilbert  v.  Vachon,  69  Ind.  372  (1879). 

"Cranson  v.  Goss,  107  Mass.  439  (1871) ;  Clinton  Nat.  Bank  v.  Graves,  48 
Iowa  228  (1878) ;  Vinton  v.  Peck,  U  Mich.  287  (1866).  So,  too,  in  the  case 
of  a  bond,  Commonwealth  v.  Kendig,  2  Penna.  St.  448  (1848). 

9Hilton  v.  Houghton,  35  Me.  143  (1853);  Fritsch  v.  Heislen,  40  Mo.  555 
(1867) ;  Lovejoy  v.  Whipple,  18  Vt.  379  (1816) ;  King  v.  Fleming,  72  111.  21 
(1874). 

"Flanagan  v.  Meyer,  4L  Ala.  132  (1867). 


DELIVERY   ON    CONDITION.  345 

valid  although  signed  on  Sunday.1  In  like  manner  9  bill 
for  the  sale  of  goods  contracted  on  Sunday  is  sufficient,  if 
the  goods  be  delivered  on  Monday.2 

§  227.  Delivery — On  Condition — Escrow. — It  frequently 
happens  that  the  delivery  of  commercial  paper  is  made  upon 
condition,  and  is  not  to  take  effect  until  such  condition  be 
fulfilled.3  And  such  paper  is  often  delivered  in  escrow,  and 
in  such  case  the  maker  is  only  liable  upon  the  happening  of 
the  contingency.4  But  a  note  cannot  be  delivered  in  escrow 
to  the  payee  himself;5  or  to  the  agent  of  the  payee.6  If,  how- 
ever, a  note  be  signed  by  one  person  and  delivered  to  the  payee 
to  be  signed  by  another  before  it  is  further  circulated,  the 
want  of  such  other  signature  will  be  no  defense  to  a  suit  by 
a  bona  fide  holder.7  But  where  suit  is  brought  by  the  payee, 
its  conditional  delivery  to  him  may  be  set  up  in  defense.8 
And  a  deed  delivered  in  escrow  to  the  solicitor  of  the  grantee 
has  been  held  not  to  be  binding  on  the  grantor  until  the  con- 
dition was  fulfilled.9 

'King  v.  Fleming,  72  111.  21  (1874). 

'Smith  v.  Bean,  15  N.  H.  577  (1844). 

31  Daniel  78;  Story  on  Prom.  Notes  \  56  n.  4;  Bell  v.  Ingestre,  12  Q.  B. 
317  (1848) ;  Benton  v.  Martin,  52  N.  Y.  570  (1873) ;  Seymour  v.  Cowing,  4 
Abb.  App.  Dec.  200  (1864);  Miller  v  Gambie,  4  Barb.  146  (1848);  Sweet  v. 
Stevens,  7  R.  I.  375  (1863) ;  Ward  v.  Churn,  18  Gratt.  801  (1868).  So,  too,  the 
delivery  of  an  agreement  for  the  sale  of  goods  may  be  conditional,  Pym  v. 
Campbell,  6  El.  &  Bl.  370  (1856). 

41  Daniel  78 ;  1  Parsons  51 ;  Couch  v.  Meeker,  2  Conn.  302  (1817) ;  Taylor 
v.  Thomas,  13  Kans.  217  (1874). 

5Badcock  v.  Steadman,  1  Root  87  (1789) ;  Massmann  v.  Holscher.  49  Mo. 
87  (1871) ;  Henshaw  v.  Dutton,  59  Mo.  139  (1875) ;  Jones  v.  Shaw,  67  lb.  667 
(1S78);  Johnson  v.  Branch,  11  Humph.  521  (1851).  But  see,  contra,  Alex- 
ander v.  Wilkes,  11  B.  J.  Lea  221  (1883).  So,  Brown  v.  Reynolds,  5  Sneed 
639  (1858),  where  delivery  of  a  note  to  the  payee  to  hand  to  a  third  person 
for  safekeeping  was  held  to  be  a  good  escrow  ;  and  Breeden  v.  Grigg,  8  Baxt. 
163  (1874),  where  the  maker  of  a  note  was  allowed  to  prove  by  parol  that 
he  had  delivered  it  to  the  payee  conditionally.  In  cases  where  a  note  was 
signed  by  a  surety  and  delivered  to  the  payee  to  procure  a  certain  other 
surety  and  not  to  use  it  until  he  had  done  so,  the  condition  was  held  void 
in  Johnson  v.  Branch,  supra,  but  enforced  by  injunction  in  Majors  v.  Mc- 
Neilly,  7  Heisk.  294  (1872). 

'Stewart  v.  Anderson, 59  Ind.  375  (1S77) ;  Scott  v.  State  Bank,  9  Ark.  36  (1848). 

'Massmann  v.  Holscher,  49  Mo.  87  (1871).  But  when  the  defense  is  set 
up  thai  the  delivery  was  only  in  escrow,  the  holder  must  show  himself  to 
Ik-  a  holder  for  value  without  notice  and  before  maturity,  Vallett  v.  Parker, 
6  Wend.  615  (1831). 

MefTeries  v.  Austin.  1  Stra.  674. 

■Watkins  v.  Nash.  L.  R.  20  Eq.  Cas.  262  (1S73). 


346  FORM — COMPLETION  OF  CONTRACT. 

§  228.  Ill  general  where  the  delivery  of  commercial  paper 
is  conditional,  the  non-fulfillment  of  the  condition  constitutes 
a  good  defense  to  the  instrument,  e.  g.  a  condition  to  redeliver 
the  note  if  another  note  and  account,  for  which  it  was  given, 
could  not  be  used;1  or  if  the  maker  wished  to  withdraw 
from  a  college  subscription,  for  which  it  was  given  ;2  or  a 
condition  that  others  should  sign  as  co-makers  or  as  co-sure- 
ties.3 So,  where  a  non-negotiable  note  is  executed  by  a 
surety  and  left  with  his  principal  to  be  delivered  upon  a  cer- 
tain condition,  and  it  is  delivered  by  the  principal  in  viola- 
tion of  the  agreement,  the  surety  will  not  be  bound.4  So,  a 
note  for  subscription  to  stock,  put  into  escrow  and  delivered 
in  violation  of  the  condition,  will  not  render  the  maker  lia- 
ble.5 So,  a  note  payable  to  a  contractor  for  erecting  a  public 
building  "or  bearer,"  left  in  escrow  to  be  delivered  on  per- 
formance of  the  building  contract,  cannot  be  subsequently 
delivered  to  another  contractor,  who  finished  the  building  at 
a  later  time  than  the  original  contract  specified.6  So,  if  an 
indorsement  is  made  on  condition  of  the  discontinuance  of 
a  suit,  the  non-performance  may  be  set  up  in  defense.7 

§  229.  But  it  has  been  held  that  a  condition  that  certain 
old  notes  for  which  the  note  in  suit  was  given,  should  be 
returned  was  a  condition  subsequent  and  could  not  avail  as 
a  defense.8  If  the  condition  is  indorsed  on  the  note,  avoid- 
ing it  if  a  dispute  should  arise,  such  indorsement  is  part  of 
the  note  and  renders  it  non-negotiable.9 

^imonton  v.  Steele,  1  Ala.  357  (1840). 

2Hillsdale  College  v.  Thomas,  40  Wise.  661  (1876). 

3Leaf  v.  Gibbs,  4  C.  &  P.  466  (1830) ;  Miller  v.  Gambie,  4  Barb.  146  (1848). 
At  suit  of  a  mere  depositary,  Strieklin  v.  Cunningham,  58  111.  293  (1871) ;  or 
of  the  payee  taking  the  instrument  with  notice  of  the  condition,  Easter  v. 
Minard,  26  111.  494  (1861). 

4Daniels  v.  Gower,  54  Iowa  319  (1880).  So,  too,  in  case  of  a  sealed  bond, 
The  People  v.  Bostwick,  32  N.  Y.  445  (1865) ;  Lovett  v.  Adams,  3  Wend.  380. 

5Roberts  v.  McGrath,  38  Wis.  52  (1875) ;  Roberts  v.  Wood,  lb.  60. 

6McLean  v.  Nugent,  33  Wis.  353  (1874). 

7Bookstaver  v.  Jayne,  60  N.  Y.  145  (1875). 

8Goddard  v.  Cutts,  11  Me.  440  (1834).  See,  too,  Henshaw  v.  Button,  59> 
Mo.  139  (1875). 

9  Hartley  v.  Wilkinson,  4  Campb.  127  (1875). 


DEFENSE    FOR    WANT    OF    DELIVERY.  347 

Where  a  bill  is  indorsed  and  delivered  on  condition  that 
certain  notes  be  taken  up,  the  breach  of  this  condition  may 
be  proved  under  the  general  issue.1  If  a  note  is  delivered 
for  a  policy  of  insurance,  to  take  effect  when  the  policy 
should  be  received,  and  is  indorsed  before  that  time,  the 
question  of  delivery  is  one  for  the  jury.2 

And  where  a  note  was  delivered  to  the  payee  in  viola- 
tion of  a  condition  between  the  principal  and  surety  exe- 
cuting it,  and  the  payee  knew  of  the  condition,  relief  was 
given  to  the  surety  in  equity  and  a  cancellation  of  the  note 
decreed  against  the  payee.3  So,  where  a  bill  of  exchange  is 
delivered  with  a  bill  of  lading  attached,  a  condition  is  im- 
plied which  is  forfeited  by  detaching  the  bill  of  lading,  and 
acceptance  may  be  refused  in  such  case.4  But  where  a  com- 
promise is  made  by  an  insolvent  with  his  creditors,  condi- 
tioned on  the  acceptance  of  all,  and  notes  are  given  in  settle- 
ment with  an  iudorser,  such  indorsement  amounts  to  a  waiver 
of  the  condition  on  which  the  compromise  was  made.5 

§  230.  Delivery — Defense  for  Want  of. — The  cases  of  de- 
fense above  enumerated  are,  unless  otherwise  stated,  all  cases 
of  defense  allowed  against  the  original  payee  or  a  holder  with 
notice  or  without  consideration.  That  a  note  has  been  deliv- 
ered in  escrow  is  no  valid  defense  at  suit  of  a  bona  fide  holder 
for  value;6  although  it  may  be  set  up  in  New  York  against 

1Bell  v.  Ingestre,  12  Q.  B.  317  (1848). 

'Sweet  v.  Chapman,  7  Hun  576  (1876). 

3Devries  v.  Shumate,  53  Md.  211  (1879). 

4Lanfear  v.  Blossman,  1  La.  An.  148  (1846). 

'Whittemore  v.  Obear,  58  Mo.  280  (1874). 

6Vallett  v.  Parker,  6  Wend.  615  (1831) ;  Moore  v.  Miller,  6  Lans.  396  (1872) ; 
Fearing  v.  Clark,  16  Gray  474  (1860).  This  is  true  also  of  a  note  delivered 
for  a  special  purpose  and  fraudulently  diverted,  YVoodhull  v.  Holmes,  10 
Johns.  231.  But  a  note  delivered  by  an  accommodation  maker  to  his  co- 
maker to  negotiate,  although  made  payable  to  a  payee  named  therein  and 
given  for  a  special  purpose  and  indorsed  but  never  accepted  by  such  payee, 
Baa  been  held  to  have  been  sufficiently  delivered,  Morris  v.  Morton,  14  Neb. 
358  (1883).  And  where  the  payee  is  ignorant  of  the  fraud  which  was  per- 
petrated by  the  maker's  agent,  who  thereby  obtained  and  delivered  the 
check  to  the  payee,  the  latter  occupies  the  position  of  a  bona  fide  holder  as 
to  this  defense,  Watson  v.  Russell,  3  B.  &  S.  34  (1862),  affirmed,  5  lb.  968. 
Bo,  loo,  a  transfer  of  stock  "  for  value  received,"  McNeil  v.  Tenth  Nat.  Bank, 
46  N.  Y.  325  (1871).  But  a  payee,  who  knew  that  the  note  was  given  to  the 
maker's  agent  for  another  purpose  and  whose  name  was  written  in  a  blank 


348  FORM — COMPLETION  OF  CONTRACT. 

one  who  has  taken  the  paper  merely  as  security  for  a  precedent 
debt  without  other  consideration.1  Where  a  note,  therefore, 
is  given  to  a  company  for  stock,  on  condition  that  it  be  held 
until  all  the  stock  be  subscribed  and  the  railroad  be  finished, 
and  on  the  further  condition  that  the  railroad  be  finished  in 
two  years,  the  breach  of  these  conditions  will  constitute  no 
defense  at  suit  of  a  bona  fide  holder  for  value.2  And  where 
a  note  is  delivered  to  the  payee's  agent  in  consideration  partly 
for  another  note,  and  is  not  to  be  delivered  to  the  payee  until 
such  other  note  is  paid,  it  has  even  been  held  that  the  payee 
receiving  such  note  from  the  agent  without  notice  of  the  con- 
dition violated,  takes  it  clear  of  the  condition.3  Again,  where 
stockholders'  notes  have  been  given  to  make  up  the  impaired 
capital  of  a  corporation,  and  deposited  with  a  bank  with  the 
agreement  that  they  should  be  credited  and  drawn  against, 
only  as  they  were  made  good  by  the  company's  dividends, 
and  have  been  transferred  in  violation  of  this  agreement  by 
the  bank  as  collateral,  the  company  to  whom  they  were  made 
cannot  recover  them  from  such  transferees.4 

And  where  a  note  after  being  signed  was  to  have  had  a 
condition  added  to  it,  but  was  carried  off  by  the  payee  against 
the  maker's  will  before  this  was  done,  it  was  held  to  be  good 
in  the  hands  of  a  bona  fide  holder  for  value.5  It  has  been 
held,  however,  in  some  cases,  that  where  a  note  left  in  escrow 
was  delivered  in  violation  of  conditions,  this  might  be  set  up 
even  at  suit  of  a  bona  fide  holder  for  value.6  This  has  been 
held,  too,  in  favor  of  a  surety  executing  a  note  on  condition 
of  its  execution  by  a  co-surety  ;7  and  in  the  case  of  the  con- 
left  by  the  maker,  is  not  a  bona  fide  holder,  and  takes  the  note  subject  to 
the  condition  on  which  it  was  delivered  to  the  agent,  Mills  v.  Williams,  16 
So.  Car.  593  (1881). 

Prentiss  v.  Graves,  33  Barb.  621  (1860). 

2Foy  v.  Blackstone,  31  111.  538  (1863). 

sStewart  v.  Anderson,  59  Ind.  375  (1877). 

4  Black  River  Ins.  Co.  v.  N.  Y.  L.  &  T.  Co.,  73  N.  Y.  282  (1878). 

5Clarke  v.  Johnson,  54  111.  296  (1870). 

•Chipman  v.  Tucker,  38  Wise.  43  (1875). 

7Ayres  v.  Milroy,  53  Mo.  516  (1873).  But  see,  contra,  Deardorff  v.  Forea- 
man,  24  Ind.  481  (1865). 


PAROL    EVIDENCE.  349 

ditional  delivery  of  a  bond  by  a  surety.1  The  objection  to  a 
delivery  on  the  ground  of  its  escrow  character,  is,  however, 
precluded  in  a  case  where  two  exchange  notes  were  both  put 
in  escrow  and  the  maker  of  one  takes  the  other  from  escrow 
and  holds  it.2 

§  231.  Parol  Evidence. — Where  want  of  delivery  or  breach 
of  condition  or  escrow  in  the  delivery  is  available  as  a  de- 
fense, it  may  be  shown  by  parol  evidence.3  So,  it  may  be 
shown  by  parol  that  an  undated  contract  in  writing  was  de- 
livered to  take  effect  in  future;4  or  that  a  contract  of  sale 
was  to  be  void,  if  A.  should  not  within  a  reasonable  time  con- 
sent to  it.6  And  where  a  note  was  delivered  or  was  placed 
in  escrow  to  be  delivered  on  a  certain  condition,  and  the  de- 
positary died  before  the  performance  of  the  condition,  his 
declarations  as  to  the  condition  are  admissible  in  defense 
against  an  indorsee  after  maturity  of  the  note.6  But  even  at 
suit  of  the  payee  parol  evidence  of  such  condition  has  been 
held  to  be  inadmissible  on  account  of  the  absolute  form  of 
the  note.7 

1Ward  v.  Chum,  18  Gratt.  801  (1868). 

'Smith  v.  Smith,  13  C.  B.  (n.  S.)  418  (1862). 

'Benton  v.  Martin,  52  N.  Y.  570  (1873) ;  Lattimer  v.  Hill,  8  Hun  171  (1876) ; 
Sweet  v.  Stevens,  7  R.  I.  375  (1863) ;  Watkins  v.  Bowers,  119  Mass.  383  (1876) ; 
Rickettsv.  Pendleton,  14Md.320  (1859) ;  Bradley  v.  Bentley,  8  Vt.  243  (1836); 
Mosher  v.  Rogers,  20  Cent.  L.  J.  316  (111.  Sup.  Ct.  1884). 

4Davis  v.  Jones,  17  C.  B.  625  (1856) ;  Murray  v.  Earl  of  Stair,  2  B.  &  C.  82; 
S.  C,  3  D.  &  R.  278.  But  a  different  result  was  reached  where  the  instru- 
ment had  a  date  from  which  it  appeared  on  its  face  to  take  effect,  Williams 
v.  Jones,  5  B.  &  C.  108;  S.  C,  7  D.  &  R.  549. 

5Wallis  v.  Littell,  11  C.  B.  (n.  s.)  369  (1861). 

•Goodson  v.  Johnson,  35  Tex.  622  (1871). 

7Roche  v.  Roanoke  Seminary,  56  Ind.  198  (1877) ;  Massmann  v.  Holscher, 
49  Mo.  87  (1871). 


850  FORM INLAND   AND    FOREIGN    BILLS. 


III.    INLAND   AND    FOREIGN    BILLS. 

232.  Origin— Distinction. 

233.  Foreign  Bills  in  the  United  States. 

234.  Indorsement — Parts — Protest — Pleading. 

235.  Presumption  from  Date. 

236.  American  Statutes. 

§  232.  Origin  and  Distinction. — When  bills  of  exchange 
are  first  mentioned  is  a  matter  of  great  uncertainty.  There 
is  no  trace  of  them  in  the  Roman  law.1  According  to  the 
authority  of  Montesquieu,  they  were  invented  by  the  Jews 
and  Lombards.2  At  all  events,  it  has  been  shown  clearly 
that  they  were  in  use  in  the  fourteenth  century,  in  Venice, 
and  were  probably  introduced  into  England  before  the  end 
of  that  century.3 

A  bill  of  exchange  is  either  foreign  or  inland.  Foreign 
bills,  as  the  term  is  used  in  the  United  States,  are  either 
drawn  or  payable  abroad.  Such  bills  first  received  judicial 
sanction  in  England  in  the  time  of  James  L*  Inland  bills 
seem  to  have  originated  in  England  in  the  time  of  Charles 
II.5  At  first  mercantile  effect  was  given  by  the  courts  only 
to  bills  drawn  between  English  and  foreign  merchants.6  But 
the  principles  applied  to  them  were  soon  extended  to  all 
traders  and  finally  to  all  persons  whether  traders  or  not.7 

Inland  bills  are  drawn  and  payable  in  the  same  State  or 
country.8  A  bill  drawn  in  London,  payable  there  to  the 
order  of  a  London  merchant,  upon  a  merchant  residing  at 
Brussels,  and  accepted  by  him  there,  has  been  held  to  be  an 

1  Pothier,  Contrat  de  Change  pi.  6. 

•Chitty  15;  2  Blackst.  Com.  467. 

3Claxton  v.  Swift,  2  Show.  441. 

4  Martin  v.  Boure,  Cro.  Jac.  6;  Oaste  v.  Taylor,  lb.  306;  Hussey  v.  Jacob, 
Ld.  Raym.  88. 

5Mahoney  v.  Ashlin,  2  B.  &  Ad.  378;  Amner  v.  Clark,  2  Cromp.  M.  &  R. 
468.  Actions  on  such  bills  "  did  first  begin,"  it  seems,  in  the  time  of  Lord 
Holt,  C.  J.,  and  depended  on  proof  of  a  special  custom  to  support  them, 
Buller  v.  Crips,  6  Mod.  29;  1  Salk.  130;  Holt  119. 

6 Oaste  v.  Taylor,  Cro.  Jac.  306. 

'Bromwich  v.  Loyd,  2  Lutw.  1585;  Sarsfield  v.  Witherly,  2  Vent.  395; 
Comb.  45;  Cramlington  v.  Evans,  2  Vent.  310. 

8Story  on  Bills  \  465. 


FOREIGN    BILLS    IN    THE    UNITED    STATES.  351 

Inland  bill.1  And  the  rule  is  thus  stated  by  Mr.  Chitty : 
"  When  both  the  drawer  and  the  drawee  reside  in  the  same 
State  or  country,  or  in  that  part  of  the  country  where  the  bill 
is  drawn,  or  when  both  drawn  and  payable  in  the  same  State 
or  country,  although  accepted  abroad,"2  it  is  an  inland  bill. 

Foreign  bills,  on  the  other  hand,  are  "  Such  as  are  drawn 
or  payable,  or  both,  abroad."3  A  fortiori,  a  bill  drawn  and 
payable  abroad,  is  a  foreign  bill.4  This  applies  also  to  bills 
drawn  in  one  realm  of  the  United  Kingdom  payable  in 
another.5  Thus,  a  bill  drawn  in  England,  payable  in  Scot- 
land or  Ireland,  was,  until  recently,  by  English  law  a  for- 
eign bill.6  But  under  the  Act  of  1  and  2  Geo.  IV.  c.  78,  a 
bill  drawn  and  payable  in  Scotland  or  Ireland  became  an 
inland  bill,  requiring  acceptance  in  writing.7  And  by  the 
Act  of  19  and  20  Vict.  c.  97,  §  7,  all  bills  and  notes  drawn 
in  one  part  of  the  British  Islands  payable  in  another  are 
made  inland  bills.8  And  this  provision  is  continued  in  force 
in  the  Bills  of  Exchange  Act  of  1882.9  For  the  purposes 
of  the  present  British  Stamp  Act,  only  bills  and  notes  made 
or  purporting  to  be  made  out  of  the  United  Kingdom  are  to 
be  deemed  foreign  bills.10 

§  233.  Foreign  Bills  in  the  United  States. — In  the  United 
States  it  is  to  be  remembered  that  the  States  are,  in  law,  for- 
eign to  each  other.11    Thus,  a  bill  drawn  in  Maine,  payable 

'Chitty  14;  Amner  v.  Clark,  2  Cromp.  M.  &  R.  468.     See  5  Tyrw.  942. 
'Chitty  14. 

8  Byles  396 ;  and  in  this  sense  one  realm  of  the  United  Kingdom  is  foreign 
to  another,  lb. 
41  Parsons  55. 

""Godfrey  v.  Coulman,  13  Moo.  P.  C.  C.  11;  Heywood  v.  Pickering,  L.  R.  9 
Q.  B.  428. 

6  Mahoney  v.  Ashlin,  2  B.  &  Ad.  478. 

7  Byles  397^  Mahoney  v.  Ashlin,  supra. 

8Byles398;  Griffin  v.  Weathershy,  L.  R.  3  Q.  B.  753;  Heywood  v.  Picker- 
ing, supra. 

»45  and  46  Vict.  ch.  61  §  4. 

10 Byles  398;  33  and  34  Vict,  c.  97  U  51,  52. 

11 1  Daniel  10 ;  1  Edwards  g  9,  2  Edwards  \  793 ;  1  Parsons  56 ;  Story  on  Bills 
\\  '23,  465 ;  Story  Cfl.  \  281  &c. ;  Buckner  v.  Finley,  2  Pet.  58  (1829) ;  Bank  of 
United  States  v.  Daniel,  12  Pet.  32  (1838) ;  Commercial  Bank  v.  Varnum,  49 
N.  Y.  269  (1872) ;  Dickens  v.  Bent,  10  Pet.  572;  Ocean  Nat.  Bank  v.  Williams, 
102  Mass.  141  (1869). 


352  FORM INLAND    AND    FOREIGN    BILLS. 

in  Massachusetts,  is  a  foreign  bill.1  And,  in  general,  a  bill 
drawn  in  one  State  payable  in  another  is  such,2  although  all 
parties  may  be  citizens  of  one  State.3  In  like  manner,  if  a 
bill  is  drawn,  in  England,  on  a  house  in  Paris,  and  accepted 
and  payable  in  Paris,  it  is  a  foreign  bill.4  On  the  other 
hand,  it  has  been  held,  in  Kentucky,  that  if  a  bill  is  drawn 
by  a  citizen  of  Kentucky  on  a  citizen  of  Louisiana,  and  pay- 
able  in  Louisiana,  it  is  a  foreign  bill.5 

It  has  been  said  by  some  text  writers  that  a  bill  is  foreign 
"  when  drawn  by  a  person  in  one  State  or  country  upon  a 
person  in  a  foreign  State  or  country."6  And  many  cases  in 
the  United  States  have  held  such  bills  drawn  between  differ- 
ent States  to  be  foreign.7  Although  it  does  not  appear,  it  is- 
probable  in  most  of  the  cases  from  the  form  of  the  bill,  that 
it  was  payable,  at  least  by  implication,  in  the  place  where 
the  drawee  resided.  Indeed,  the  place  of  payment  of  a  bill  of 
exchange  is  often  expressed  in  no  other  manner.  But  it  has- 
also  been  held  that  a  bill  drawn  in  one  State  upon  a  citizen 
or  resident  of  another  is  a  foreign  bill.8  So,  a  bill  drawn 
and  payable,  in  England,  upon  a  Boston  house,  and  accepted 
in  England  by  a  partner  of  the  Boston  house  who  was  there 
at  the  time,  has  been  held  to  be  a  foreign  bill,  as  though 
accepted  in  Boston.9 

ll  Daniel  8 ;  Warren  v.  Coombs,  20  Me.  139  (1841) ;  Ticonic  Bank  v.  Stack- 
pole,  41  lb.  302  (1856). 

2  And  this  appears  to  be  the  meaning  of  the  definitions  of  Chitty,  Edwards 
and  Story,  the  bill  being  generally  payable  where  the  drawee  resides. 

3  Grafton  Bank  v.  Moore,  14  N.  H.  142;  Freemans  Bank  v.  Perkins,  18  Me. 
292;  Atwater  v.  Streets,  1  Doug.  455  (Mich.  1844). 

*  Rothschild  v.  Currie,  1  Q.  B.  43  (1841). 

6Chenowith  v.  Chamberlin,  6  B.  Mon.  60  (1845). 

6 Chitty  14 ;  1  Edwards  g  8,  2  lb.  \  793 ;  Story  on  Bills  \  22. 

7Duncan  v.  Course,  1  Mill  100  (So.  Car.  1817);  Phoenix  Bank  v.  Hussey, 
12  Pick.  483  (1832) ;  Brown  v.  Ferguson,  4  Leigh  37  (1832) ;  Wells  v.  White- 
head, 15  Wend.  527  (1836);  Hartridge  v.  Wesson,  4  Ga.  101  (1848);  Com- 
mercial Bank  v.  Varnum,  49  N.  Y.  269  (1872) ;  Donegan  v.  Wood,  49  Ala. 
242  (1873) ;  Todd  v.  Neal,  lb.  266  (1873).  And  see  Lonsdale  v.  Brown,  4 
Wash.  C.  C.  86  (1821).  But  in  Miller  v.  Hackley,  5  Johns.  375  (1810),  such 
a  bill  was  held  to  be  an  inland  bill. 

•Aborn  v.  Bosworth,  1  R.  I.  401  (1850). 

"Grimshaw  v.  Bender,  6  Mass.  157  (1809).  In  this  case,  p.  160,  Parsons,  C. 
J.,  says :     "  It  is  manifest  that  the  remedy  contemplated  by  the  parties 


PRESUMPTION    FROM    DATE.  353 

§  234.  Indorsement — Parts — Protest — Pleading. — An  in- 
dorsement being  equivalent  to  a  bill  drawn  by  the  indorser 
upon  the  maker  of  a  note,  the  indorsement  of  such  a  note 
payable  in  another  State  is  equivalent  to  a  foreign  bill.1 
This  has  been  held  also  to  be  the  case,  where  a  note  was 
drawn  in  one  State,  payable  to  a  resident  of  a  second  State, 
and  indorsed  in  a  third  State.2 

Inland  bills  are  generally  drawn  in  a  single  part,  while 
foreign  bills  are  frequently  drawn  in  sets  of  three  or  more 
parts.3  The  chief  difference,  however,  in  effect  between  in- 
land and  foreign  bills  is  that  the  latter  require  protest  and 
the  former  do  not,  except  where  it  is  otherwise  provided  by 
statute.4  At  common  law  where  a  suit  is  brought  on  a  for- 
eign bill,  it  has  been  held  that  it  should  be  stated  in  the 
declaration  to  be  such,  and  if  so  stated,  the  action  cannot  be 
maintained  by  proving  an  inland  bill  or  vice  versa.5 

§  235.  Presumption  from  Date. — Every  bill  is  prima  facie 
an  inland  bill.6  On  the  other  hand,  if  it  appears  to  be 
drawn  abroad,  there  is  an  implied  warranty  on  the  part  of 
the  indorser  that  it  was  in  reality  so  drawn.7  And  by  the 
British  Stamp  Act,  as  has  been  said,  every  bill  purporting 
to  be  drawn  out  of  the  United  Kingdom  is  deemed  to  be  a 
foreign  bill.8  It  was  formerly  held  that  an  acceptor,  know- 
ing such  a  bill  at  the  time  of  his  acceptance  to  have  been 
really  drawn  in  England,  might  allege  in  defense  against 
even  a  bonajide  holder  that  it  was  an  inland  bill,  and  there- 
in the  event  of  the  bill  being  dishonored  must  be  sought  in  this  State  where 
the  acceptors  lived.  From  this  view  of  the  case  the  instrument  must  be 
considered  as  a  foreign  bill." 

^iconic  Bank  v.  Stackpole,  41  Me.  302  (1856). 

'Carter  v.  Burley,  9  N.  H.  558  (1838). 

8Byles  398. 

41  Daniel  9. 

•Byles  398;  Armani  v.  Castrique,  13  M.  &  W.  443. 

•Byles  398. 

7  Byles  398 ;  Gomperti  v.  Bartlett,  2  E.  &  B.  854. 

•Byles  398 ;  33  and  34  Vict.  c.  97  U  51  and  52  E.    See,  too,  17  and  18  Vict 
e.  83  |4  (repealed  1870) ;  Siordet  v.  Kuczynski,  17  C.  B.  251. 

X 


354  FORM INLAND    AND    FOREIGN    BILLS. 

fore  void  for  want  of  a  stamp.1  This  is  now  made  impossible 
by  the  statutes  which  have  been  referred  to. 

In  the  United  States  it  has  been  held  that  a  bill,  drawn 
in  New  York  by  a  Boston  merchant  on  a  New  York  mer- 
chant, but  dated  in  Boston,  is  a  foreign  bill  not  only  as  to 
bona  fide  holders,  but  even  as  to  the  original  parties  to  it,2 
And,  on  the  other  hand,  that  a  bill  between  citizens  of  Illi- 
nois, actually  drawn  in  Wisconsin,  but  dated  and  made  pay- 
able in  Illinois,  is  an  inland  bill,  having  been  so  intended 
by  the  parties  to  it.3  If  a  bill  is  dated  as  though  drawn 
abroad,  it  is  presumed  to  have  been  so  drawn ;  but  parol 
evidence  was  formerly  admitted,  in  England,  to  show  the 
contrary  and  render  the  bill  void  under  the  Stamp  Act.4  It 
may  now,  however,  be  regarded  as  the  rule  that  parol  evi- 
dence is  inadmissible,  to  render  such  a  bill  void  as  an  inland 
bill,  against  a  holder  who  has  purchased  it  before  maturity 
for  value  and  in  good  faith.5  And  it  has  been  held,  in  Mis- 
souri and  Texas,  that  the  courts  will  not  recognize  the  place 
of  date  or  payment  named  in  a  bill  as  situated  in  a  foreign 
country  without  proof  of  that  fact.6 

§  236.  American  Statutes. — In  Alabama  an  inland  bill  is 
one  drawn  and  payable  in  that  State,  and  bills  drawn  in  that 
State  payable  elsewhere  are  foreign.7  In  California  bills 
drawn  and  payable  in  that  State  are  inland  bills.  All  others 
are  foreign.8  In  Georgia  a  bill  is  foreign,  if  either  drawer 
or  drawee  reside  out  of  the  State.9  In  Illinois  bills  appear 
to  be  regarded  as  foreign,  if  drawn  and  indorsed  in  that  State 

^yles  398;  Steadman  v.  Duhamel,  1  C  B.  888. 

'Lennig  v.  Ralston,  23  Penna.  St.  137  (1854).    And  see  Chapter  III.,  supra. 

"Strawbridge  v.  Robinson,  10  111.  470  (1849). 

4Jordaine  v.  Lashbrooke,  7  T.  R.  601.  As  to  what  is  sufficient  evidence, 
see  Abraham  v.  Du  Bois,  4  Campb.  269  (1815) ;  Bire  v.  Moreau,  2  C.  &  P.  376 
(1826). 

5Towne  v.  Rice,  122  Mass.  67  (1877). 

•Rig^in  v.  Collier.  6  Mo.  568  (1840) ;  Cook  v.  Crawford,  4  Tex.  420  (1849)  ■ 
Andrews  v.  Hoxie,  5  lb.  171  (1849) ;  Yale  v.  Ward,  30  lb.  17  (1867). 

'Alaluiina  (Code  T876  ?  211S\. 

8Cal.  Civil  Code  1876  I  3224. 

•Georgia  (Code  18S2  \  2773). 


AMERICAN   STATUTES.  355 

and  payable  out  of  the  United  States.1  And  so  in  Minne- 
sota.2 But  in  Minnesota,  if  drawn  on  a  drawee  out  of  the 
State,  but  within  the  United  States,  they  are  regarded  as 
inland  bills.3  In  Mississippi  domestic  bills  drawn  on  that 
State  and  payable  in  it  are  put  on  the  footing  of  foreign  bills, 
if  over  twenty  dollars.4  So,  in  New  Jersey  inland  bills 
drawn  in  that  State  and  on  a  drawee  there,  if  over  eight  dol- 
lars and  payable  at  sight  or  on  demand,  or  at  a  future  time 
named.5  In  New  York  bills,  notes  and  checks  payable  in 
any  other  of  the  United  States  than  New  York,  or  in  any 
foreign  country,  are  foreign  as  regards  protest  and  proof  of 
it.6  In  Virginia  it  seems  that  a  bill  drawn  out  of  the  State, 
payable  in  it,  is  a  foreign  bill,  while  one  drawn  in  the  State 
on  any  other  of  the  United  States,  is  not  to  be  so  regarded, 
so  far,  at  least,  as  protest  of  the  bills  is  concerned.7 

Illinois  R.  S.  Hurd  1883  p.  771  \  1. 

»Minn.  G.  S.  1878  ch.  26  \  14. 

•Minn.  G.  S.  1878  ch.  23  §  15. 

*Miss.  Rev.  Code  1880  \  1128. 

•N.  J.  Rev.  1874  p.  898  \  2. 

•N.  Y.  R.  S.  (Bank's  7th  ed.)  p.  2246  L.  1865  ch.  309. 

'Brown  v.  Ferguson,  4  Leigh  37,  51  (1832) ;  Va.  Code  1873  p.  986  g  7. 


356  FORM — PARTS   OR   COPIES. 


IV.    PARTS   OR   SET   OF   PARTS. 

237.  Condition  Expressed. 
288.  Delivery. 

239.  Transfer. 

240.  Presentment  and  Acceptance. 

241.  Protest  —Payment — Action. 

242.  Copies. 

243.  Foreign  Statutes. 

§  237.  Condition  Expressed. — Foreign  bills  of  exchange 
are  generally  drawn  in  a  set  of  several  parts  (duplicate  or 
triplicate,  as  the  case  may  be,)  to  guard  against  delay  and 
loss.  The  usual  number  of  parts  is  three,  although  there 
may  be  more  or  less.  Each  part  should  be  designated  by  its 
number  and  should  refer  to  the  other  parts,  requiring  pay- 
ment on  condition  of  their  being  unpaid.1  It  seems  that 
such  reference  was  formerly  often  omitted  in  Europe  in  the 
first  part;2  but  this  practice  has  never  found  favor  in  the 
United  States.  All  the  parts,  whatever  may  be  their  num- 
ber, compose  one  set  and  constitute  but  one  bill.3  In  Great 
Britain,  however,  each  part  requires  a  stamp.4 

§  238.  Delivery. — All  the  parts  should  be  delivered 
together;6  and  in  a  transfer  of  the  bill  all  should  be  trans- 
ferred.6 And  it  has  been  said  that  an  agreement  to  deliver 
a  foreign  bill  of  exchange,  requires  the  delivery  of  as  many 
parts  as  may  be  desired.7  But  this  has  been  rightly  ques- 
tioned, and  the  rule  is  properly  restricted  to  the  usual  num- 
ber of  parts  (duplicates  or  triplicate?) S     If  the  bill  is  lost 

ll  Chitty  178;  Story  on  Bills  §  67 ;  1  Daniel  122;  Byles  393.  The  usual 
form  is  as  follows  : 

Thirty  days  after  sight  of  this  my  First  of  Exchange  (Second  and  Third 
unpaid),  pay,  &c. 

The  Civil  Code  of  California  provides  for  any  number  of  parts,  each  mak- 
ing reference  to  the  others,  and  all  constituting  one  bill  (g  8173). 

21  Parsons  59. 

"Byles  393;  1  Daniel  121. 

*  Chitty  178;  33  and  34  Vict.  c.  97  $  55. 

6 Chitty  178;  Story  on  Bills  <j  67. 

91  Daniel  123;  Story  on  Bills  \  226. 

TByles  394;  Chitty  178;  1  Edwards  \  188. 

"Story  on  Bills,  \  6P>;  1  Daniel  121 ;  Chitty  178.  In  California  three  parts 
may  be  demanded,  Civil  Code  1872  §  8174. 


TKANSFER.  357 

another  set  may  be  demanded.1  Bat  an  action  will  not  lie 
against  prior  parties,  other  than  the  drawer  or  payee,  for  such 
other  parts  without  proof  of  their  being  in  their  possession.2 
§  239.  Transfer. — As  each  and  all  parts  of  the  bill  con- 
stitute but  one  bill,  it  follows  that  the  indorsement  of  one 
part  is  a  transfer  of  all.3  But  the  indorsement  of  one  part 
is  no  implied  warranty  of  possession  of  the  other  parts ;  al- 
though, if  the  indorser  holds  them,  he  may  be  required  to 
give  them  up  to  his  indorsee  or  a  subsequent  holder.4  If, 
indeed,  the  indorser  indorses  and  transfers  several  parts  to 
different  holders,  he  will  be  liable  generally  on  each.5  Thus, 
if  two  parts  are  accepted  and  negotiated  and  the  drawer 
knowingly  receives  the  proceeds  of  both,  he  will  be  liable  to 
the  bona  fide  holder  of  the  second  part,  although  the  acceptor 
has  paid  the  first.6  In  like  manner,  where  two  parts  have 
been  so  accepted  and  negotiated,  the  surrender  of  one  part 
to  the  acceptor  will  not  relieve  him  from  liability  on  the 
other.7  And  if  one  part  is  lost  and  paid  to  a  bona  fide  holder 
on  a  forged  indorsement,  an  action  will  still  lie  in  favor  of 
the  rightful  holder  of  the  other  parts.8  It  seems,  however, 
that  the  bona  fide  holder  of  one  part  by  valid  indorsement 
may  claim  the  other  parts  even  against  later  bona  fide  in- 
dorsees.9    And  an  averment  that  the  defendant  indorsed  a 

1  Story  on  Bills  g  66. 

2Pinard  v.  Klockman,  3  B.  &  S.  388;  32  L.  J.  Q.  B.  82. 

8Chitty  179;  1  Edwards?  188;  Benj.  Chalm.Dig.  Art.  27;  Soci6te  Gen6rale 
v.  Bank,  27  L.  T.  (n.  s.)  849  (1873) ;  Walsh  v.  Blatchley,  6  Wis.  413  (1853^ ; 
British  Bills  of  Exchange  Act  \  71. 

'Pinard  v.  Klockman,  supra;  1  Daniel  122. 

51  Daniel  123;  British  Biils  of  Exchange  Act  §  71.  And  on  payment  he 
should  have  all  individual  payments  returned  to  him,  Byles  394. 

6Wright  v.  McFall,  8  La.  An.  120  (1853).  And  if  no  condition  is  contained  - 
in  the  several  parts  referring  to  one  another,  a  drawer  or  acceptor,  although 
not  concerned  in  the  transfer  of  the  several  parts  to  different,  persons,  may 
still  be  liable  on  them  all,  Davison  v.  Robertson,  3  Dow.  218.  And  in  such 
case,  payment  of  one  part  will  be  no  defense  against  the  bona  fide  holder 
of  another,  lb.;  Chitty  178;  1  Edwards  g  188;  Story  on  Bills  ?  67. 

'Holdsworth  v.  Hunter,  10  B.  &  C.  449. 

8Chittv  178;  Cheap  v.  Harley,  3  T.  R.  127.  See,  too,  Smith  v.  Mercer,  6 
Taunt.  80;  Fuller  v.  Smith,  1  C  &  P.  197;  Ry.  &  M.  49. 

9Byles  394;  Chitty  178;  Lang  v.  Smyth,  7  Bing.  284;  5  M.  &  P.  78;  Per- 
reira  v.  Jopp,  10  B.  &  C.  450  n. 


358  FORM PARTS    OR    COPIES. 

certain  part  is  sustained  by  proof  of  his  indorsing  another 
part.1 

§  240.  Presentment  and  Acceptance. — Any  part  of  a  bill 
of  exchange  may  be  presented  for  acceptance.2  And  if  there 
are  several  parts,  as  it  is  easier  to  avoid  delay  and  obviate 
loss,  the  presentment  should  be  made  more  promptly.3  If 
the  first  part  forwarded  for  presentment  is  delayed,  the  second 
should  be  forwarded  for  that  purpose.4 

But  the  drawee  should  accept  only  one  part.5  And  he  will 
be  liable  on  the  part  accepted  by  him,  although  one  of  the 
other  parts  may  have  been  paid.6  So,  the  acceptor  is  liable 
on  all  parts  accepted  by  him  and  transferred  by  him  or  with 
his  knowledge.7  If  the  second  part  is  accepted  with  blanks 
on  condition  of  the  "first  unpaid,"  and  the  two  parts  are 
filled  up  differently  and  both  discounted,  the  acceptor  will  be 
liable  on  both  to  bona  fide  holders.8  When  the  acceptor 
pays  a  bill,  he  should  in  all  cases  have  the  accepted  part  re- 
turned to  him.9  And  if  it  is  lost,  he  is  entitled  to  demand 
security  before  paying  another  part.10 

§  241.  Protest — Payment — Action. — In  like  manner,  any 
copy  of  a  bill  may  be  protested.  And  if  the  first  has  been 
sent  to  the  indorsee  and  lost,  and  no  third  part  can  be  ob- 
tained because  of  the  drawer's  absence,  and  a  copy  of  the 
second  part  is  protested,  this  will  be  sufficient  where  payment 
has  been  refused  on  other  grounds  than  objection  to  the  copy.11 

Payment  of  one  part  is  payment  of  the  whole  bill.12    And 

1  Miller  v.  Hackley,  Anthon  91. 

'Waish  v.  Blatchley,  6  Wis.  413  (1853).  So,  in  California,  the  present- 
ment  of  one  part  for  all  is  sufficient,  1872  Civ.  Code  \  8175. 

81  Parsons  59. 

4Straker  v.  Graham,  4  M.  &  W.  721. 

6Byles395;  Chitty  178. 

6Chitty  178;  British  Bills  of  Exchange  Act  (1882)  I  71. 

7Bvles  394;  Chitty  178;  1  Edwards  §  188;  Holdsworth  v.  Hunter,  10  B.  & 
C.  449. 

8 Bank  of  Pittsburgh  v.  Neal,  22  How.  96  (1859). 

9Byles395. 

10  Chitty  178. 

"Dehers  v.  Harriot,  1  Show.  163.     ' 

,2Benj.  Chalm.  Dig.  Art.  29;  Byles  394;  1  Edwards  ?  188;  1  Parsons  59 ;. 
Story  on  Bills  \  226;  British  Bills  of  Exchange  Act  (1882)  71. 


copies.  359 

except  where  the  drawee  has  accepted  another  part,  he  may 
safely  pay  any  part  that  is  presented  to  him.  If  the  second 
part  is  paid  by  the  acceptor  after  presentment  of  the  first 
and  protest  of  it  for  non-acceptance,  and  he  afterwards  pays 
the  first  in  the  hands  of  a  bona  fide  holder,  he  may  recover 
the  amount  paid  as  a  payment  made  by  mistake.1  If  two 
parts  are  both  accepted  and  negotiated,  and  the  proceeds 
received  by  the  drawer,  he  will  be  liable  on  the  first  part, 
although  the  second  part  has  been  paid  by  the  acceptor.2 

When  a  bill  is  paid,  the  part  which  has  been  protested 
should  be  surrendered.  So,  a  part  which  has  been  accepted 
should  be  surrendered  ;  and  if  this  is  not  done,  the  acceptor 
may  still  remain  liable  to  a  bona  fide  holder.3  When  an 
agreement  is  made  to  surrender  a  bill,  it  implies  the  surren- 
der of  all  the  parts.4  After  the  first  part  of  a  bill  has  been 
surrendered  to  the  drawer  with  demand  for  remittance  (which 
amounts  to  extinguishing  it),  the  holder  cannot  transfer  the 
second  part  for  the  purpose  of  suit.6 

When  suit  is  brought  by  an  indorsee  against  the  acceptor 
of  a  bill,  only  the  part  which  is  accepted  need  be  produced.6 
But  where  an  action  is  brought  on  the  first  part  against  the 
indorser,  and  the  third  part  has  been  presented  and  protested 
for  non-acceptance,  it  must  be  produced,  it  is  said,  in  order  to 
guard  against  the  contingency  of  an  acceptance  supra  pro- 
test? But  if  the  indorsee  bring  suit  against  his  indorser 
on  one  part,  the  other  parts  need  not,  in  general,  be  pro- 
duced.8 

§  242.  Copies. — In  England  and  in  the  United  States  no 

'Durkin  v.  Cranston,  7  Johns.  442  (1811). 

'Wright  v.  McFall,  8  La.  An.  120  (1853). 

sBenj.  Chalm.  Dig.  Art.  27;  British  Bills  of  Exchange  Act  (1882)  \  71. 

4 B vies  580;  Chitty  178;  Kearney  v.  West  Granada  Mining  Co.,  1  H.  &  N. 
412;*26L.  J.  Ex.  15. 

sIngraham  v.  Gibbs,  2  Dall.  134. 

6Johnson  v.  Offutt,  4  Mete.  19  (Ky.  1862) ;  Commercial  Bank  v.  Routh,  7 
La.  An.  128. 

7  W.-lls  v.  Whitehead,  15  Wend.  527  (1806).  But  see,  contra,  Kenworthy 
v.  Hopkins,  1  Johns.  Cas.  107  (1799). 

"Uownes  v.  Church,  13  Pet.  205  (1839). 


360  FOKM — PARTS   OR    COPIES. 

general  use  is  made  of  copies  of  bills  of  exchange.  But  on 
the  continent  of  Europe,  where  a  bill  is  not  drawn  in  sets, 
copies  are  sometimes  used  for  convenience  of  transfer,  while 
the  original  is  being  forwarded  for  acceptance.  And  in  some 
cases,  although  the  practice  is  not  a  safe  one,  a  copy  without 
indorsement  is  sometimes  substituted  by  the  drawer  for  the 
original  bill  which  has  been  transferred  and  returned  to  him 
with  many  indorsements  on  it.  In  such  case  the  holder  of 
the  substituted  copy  may  be  deprived  of  his  remedy  against 
the  acceptor  by  this  act  of  the  drawer.1  We  have  seen, 
however,  that  a  protest  may  sometimes  be  made  on  a  copy 
instead  of  the  original  bill.2 

§  243.  Foreign  Statutes. — Many  foreign  statutes  require 
second,  third  and  other  parts  of  a  bill  of  exchange  to  be  given 
on  demand.3  The  drawer  may,  in  general,  deliver  to  the 
payee  either  the  first  or  second  part,  unless  otherwise  stipu- 
lated.4 If  the  several  parts  are  not  marked  as  such,  each 
will  be  taken  as  a  separate  bill,  and  the  parties  on  it  will  be 
liable  accordingly.5  And  in  such  case  the  drawer's  only 
remedy  is  against  the  persons  fraudulently  using  the  several 
parts.6  Some  States  require  each  part,  except  the  first,  to 
state  that  they  are  invalid  if  presented  after  the  first.7     And 

1  Ralli  v.  Dennistown,  6  Exch.  483. 

2Dehers  v.  Harriot,  1  Show.  163. 

3 Argentine  Republic  (1862  Code  Com.  Art.  769);  Austria  (1850  Exch.  Law 
Art.  66)  ;  Bolivia  (1834  Code  Com.  Art.  359);  Brazil  (1850  Code  Com.  Art. 
365) ;  Chili  (1865  Code  Com.  Art.  627) ;  Colombia  (1853  Code  Com.  Art.  394) ; 
Costa  Rica  (1853  Code  Com.  Art.  383) ;  Ecuador  (1829  Code  Com.  as  in  Spain) ; 
Germany  (1848  Exch.  Law  Art.  66);  Guatemala  (1774  Ordinances  of  Bilbao 
$  5) ;  Holland  (1838  Exch.  Law  Art.  104) ;  Honduras  (same  as  Guatemala 
5) ;  Lower  Canada  (1867  Civ.  Code  Art,  2284)  ;  Mexico  (1854  Code  Com.  Art. 
330) ;  Nicaragua  (1869  Code  Com.  Art.  246) ;  Peru  (1853  Code  Com.  Art.  396)  ; 
Portugal  (1833  Code  Com.  Art.  349) ;  Russia  (1862  Exch.  Law  Art.  554)  ;  Sal- 
vador (1855  Code  Com.  Art.  391) ;  Spain  (1829  Code  Com.  Art  436)  ;  Sweden 
(1851  Exch.  Law  \  64) ;  Switzerland  (Exch.  Laws,  1859  Berne,  1863  Basle,  I 
70) ;  Uruguay  (1865  Code  Com.  Art.  796) ;  Venezuela  (1862  Code  Com.  Art.  6). 

4 Argentine,  Republic  (1862  Code  Com.  Art.  768). 

^Argentine  Republic  (1862  Code  Com.  Arts.  771,  776) ;  Austria  (1850  Exch. 
Law  Art.  66) ;  Brazil  (1850  Code  Com.  Art.  354)  ;  Chili  (1865  Code  Com.  Art, 
628)  ;  Germany  (1848  Exch.  Law  Art.  66) ;  Hungary  (1861  Exch.  Law  \  21) ; 
Uruguay  (1865  Code  Com.  Arts.  789,  798). 

^Denmark  (1825  Exch.  Law  §15). 

1 Argentine  Republic  (1862  Code  Com.  Art.  769) ;  Chili  (1865  Code  Com.  Art. 
627) ;  Colombia  (1853  Code  Com.  Art.  394) ;  Costa  Rica  (1853  Code  Com.  Art. 


J 


FOEEIGN    STATUTES.  361 

some  States  require  that  where  one  part  of  a  bill  is  forwarded 
for  acceptance,  it  must  be  noted  on  the  other  parts  where 
such  part  can  be  found.1 

If  a  bill  is  sent  in  several  parts  for  acceptance  beyond  the 
sea,  they  must  be  sent  by  different  ships ;  and  an  accident  to 
the  first  ship  sailing  will  extend  the  time  for  presenting  the 
bill.2  Every  accepted  part  is  prima  facie  an  original  bill  in 
some  States.3  And  in  some  an  unaccepted  part  cannot  be 
paid  before  maturity.4  While  in  Chili  it  is  provided  that  if 
several  parts  are  presented  after  maturity,  that  which  bears 
the  earliest  number  is  to  be  paid.5 

Payment  and  possession  of  any  part  of  a  bill  by  the 
acceptor  discharges  him.6  But  if  he  pays  a  part  which  has 
not  been  accepted,  he  will  be  liable  afterward  to  the  bona  fide 
holder  of  an  accepted  part,  and  his  remedy  will  be  against 
the  person  to  whom  payment  has  been  improperly  made.7 
In  general,  payment  of  one  part  discharges  all,  except  as  to 

383)  ;  Ecuador  (1829  Code  Com.  as  in  Spain) ;  Mexico  (1854  Code  Com.  Art. 
330) ;  Peru  (1853  Code  Com.  Art.  396)  ;  Salvador  (1855  Code  Com.  Art.  391) ; 
Spain  (1829  Code  Com.  Art.  436) ;   Venezuela  (1862  Code  Com.  Art.  5). 

^Austria  (1850  Exch.  Law  Art.  68) ;  Denmark  (1825  Exch.  Law  §  16);  Ger- 
many (1848  Exch.  Law  Art.  68);  Hungary  (1861  Exch.  Law  g  23);  Sweden 
(1851  Exch.  Law  §66) ;  Switzerland  (Exch.  Laws,  1859  Berne,  1863  Basle,  §  71). 

iCosta  Rica  (1853  Code  Com.  Art.  431) ;  Mexico  (1-854  Code  Com.  Art.  378)  ; 
Nicaragua  (1869  Code  Com.  Art.  268) ;  Salvador  (1855  Code  Com.  Art.  439). 

'Holland  (1838  Exch.  Law  Art.  162);  Hungary  (1861  Exch.  Law  \  69); 
Portugal  (1833  Code  Com.  Art.  383) ;  Sweden  (lS5i  Exch.  Law  \  65). 

^Colombia  (1853  Code  Com.  Art.  459) ;  Costa  Rica  (1853  Code  Com.  Art. 
452) ;  Ecuador  (1829  Code  Com.,  as  in  Spain,  505) ;  Mexico  (1854  Code  Com. 
Art,  397)  ;  Peru  (1853  Code  Com.  Art.  460);  Salvador  (1855  Code  Com.  Art. 
458) ;  Spain  (1829  Code  Com.  Art.  505). 

&Chili  (1865  Code  Com.  Art.  720). 

'Argentine  Republic  (1862  Code  Com.  Art.  770) ;  Sweden  (1851  Exch.  Law  I 
9) ;   Uruguay  (1865  Code  Com.  Art.  797). 

'Argentine  Republic  (1862  Code  Com.  Art.  865) ;  Belgium  (1851  Code  Napo- 
leon) ;  Bolivia  (1834  Code  Com.  Art,  39S) ;  Brazil  (1850  Code  Com.  Art.  400) ; 
Chili  (1865  Code  Com.  Art.  719) ;  Colombia  (1853  Code  Com.  Art.  457) ;  Costa 
Rica  (1853  Code  Com.  Art,  450);  Ecuador  (1829  Code  Coin,  as  in  Spain); 
France  (1807  Code  Napoleon  Art.  148)  ;  Greece  (1835  Code  Napoleon) ;  Hayti 
(1826  Code  Napoleon) ;  Holland  (1838  Exch.  Law  Art.  161) ;  Italy  (1865  Code 
Com.  Art,  233);  Lower  Canada  (1867  Civ.  Code  Art.  2315);  Mexico  (1854 
Code  Com.  Art.  395);  Nicaragua  (1869  Code  Com.  Art.  279);  Peru  (1853 
Code  Com.  Art.  458);  Portugal  (1833  Code  Com.  Art.  382);  Russia  (1862 
Exch.  Law  Art.  626);  Salvador  (1855  Code  Com.  Art.  456);  San  Domingo 
(1829  Code  Napoleon)  ;  Switzerland  (Geneva,  Code  Napoleon)  ;  Spain  (1829 
Code  Com.  Art.  503);  Turkey  (Code  Napoleon  105):  Uruguay  (1865  Code 
Ooin.  Art,  883)  ;    Venezuela  (  L862  Code  Com.  Art,  64). 


362  FOKM PARTS    OR    COPIES. 

the  indorsers  and  acceptors  who  have  indorsed  or  accepted 
other  parts.1  But  it  is  sufficient,  if  the  payment  of  one  part 
shows  on  its  face  that  the  others  are  satisfied  thereby.2  The 
holder,  who  demands  payment  from  the  acceptor  of  an  un- 
accepted part,  is  entitled  to  receive  it  on  giving  security.3 
And  in  like  manner,  he  may  receive  payment  on  loss  of  the 
original  bill  without  producing  the  other  parts,  on  proving 
his  property  and  giving  security.4  And  if,  after  offering 
security,  payment  is  refused,  the  bill  should  be  protested 
and  demand  of  a  duplicate  bill  made  upon  the  indorser.5 
In  Russia  there  are  special  provisions  for  obtaining  posses- 

lAusiria  (1850  Exch.  Law  Art.  67);  Germany  (1848  Exch.  Law  Art.  67); 
Switzerland  (Exch.  Laws,  1859  Berne,  1863  Basle,  \  73) ;  Uruguay  (1865  Code 
Com.  Art.  798). 

2 'Argentine  Republic  (1862  Code  Com.  Art.  864) ;  Belgium  (1851  Code  Napo- 
leon 147) ;  France  (1807  Code  Napoleon  Art.  147) ;  Greece  (1835  Code  Napo- 
leon);  Hayti  (1826  Code  Napoleon  144);  Holland  (1838  Exch.  Law  Art. 
160) ;  Italy  (1865  Code  Com.  Art.  232) ;  Portugal  (1833  Code  Com.  Art.  381) ; 
San  Domingo  (1829  Code  Napoleon)  ;  Switzerland  (Geneva,  Code  Napoleon) ;. 
Turkey  (Code  Napoleon  104) ;  Uruguay  (1865  Code  Com.  Art.  882) ;  Venezuela 
(1862  Code  Com.  Arts.  5,  63). 

'Belgium  (1851  Code  Napoleon) ;  Bolivia  (1834  Code  Com.  Art.  399) ;  Colom- 
bia (1853  Code  Com.  Art.  458) ;  Costa  Rica  (1853  Code  Com.  Art.  451)  ;  Den- 
mark (1825  Exch.  Law  \\  61,  62);  Ecuador  (1829  Code  Com.  as  in  Spain); 
France  (1807  Code  Napoleon  Arts.  150-1);  Greece  (1835  Code  Napoleon); 
Guatemala  (1774  Ordinances  of  Bilbao  \  27)  ;  Hayti  (1826  Code  Napoleon); 
Hungary  (1861  Exch.  Laws  \\  120,  121) ;  Italy  (1865  Code  Com.  Arts.  236-7) ; 
Mexico  (1854  Code  Com.  Art.  396) ;  Nicaragua  (1869  Code  Com.  Art.  280) ; 
Peru  (1853  Code  Com.  Art.  459);  Salvador  (1855  Code  Com.  Art.  457)  ;  San 
Domingo  (1829  Code  Napoleon) ;  Spain  (1829  Code  Com.  Art.  504);  Geneva 
(Code  Napoleon  150-1);  Turkey  (Code  Napoleon  107-8);  Uruguay  (1865 
Code  Com.  Arts.  900-904) ;   Venezuela  (1862  Code  Com.  Arts.  66-70). 

'Argentine  Republic  (1862  Code  Com.  Art.  883-885);  Austria  (1850  Exch. 
Law  Art.  73-74)  ;  Belgium  (1851  Code  Napoleon) ;  France  (1807  Code  Napo- 
leon Art.  152);  Germany  (1848  Exch.  Law  Art.  73-74)  ;  Greece  (1835  Code 
Napoleon);  Hayti  (1826  Code  Napoleon  149);  Italy  (1865  Code  Com.  Art. 
238) ;  Lower  Canada  (1867  Civ.  Code  Art.  2316) ;  Nicaragua  (1869  Code  Com. 
Art.  282-3)  ;  Peru  (1853  Code  Com.  Art.  466) ;  Portugal  (1833  Code  Com.  Art. 
384);  Salvador  (1855  Code  Com.  Art.  461);  San  Domingo  (1829  Code  Napo- 
leon); Sweden  (1851  Exch.  Law  <j  70-71);  Switzerland  (Exch.  Laws,  1859' 
Berne,  1863  Basle,  g  77-79) ;  Geneva  (Code  Napoleon  152) ;  Turkey  (Code 
Napoleon  109) ;  Venezuela  (1862  Code  Com.  Art.  66-70). 

Argentine  Republic  (1862  Code  Com.  Art.  885-887):  Belgium  (1851  Code 
Napoleon  153-4);  Colombia  (1853  Code  Com.  Art.  461-4);  Costa  Rica  (1853 
Code  Com.  Art.  454-7);  Ecuador  (1829  Code  Com.,  as  in  Spain);  France 
(1807  Code  Napoleon  Art.  153-4) ;  Greece  (1835  Code  Napoleon) ;  Hayti  (1826- 
Code  Napoleon  150-1);  Italy  (1865  Code  Com.  Art.  239-240);  Mexico  (1854 
Code  Com.  Art.  399-402);  Nicaragua  (1869  Code  Com.  Art.  280-4);  Peru 
(1853  Code  Com.  Art.  467);  Salvador  (1855  Code  Com.  Art.  460-463);  San- 
Domingo  (1829  Code  Napoleon);  Spain  (1829  Code  Com.  Art.  507-510); 
Geneva  (Code  Napoleon  153-4);  Turkey  (Code  Napoleon  110-111);  Uruguay' 
(1865  Code  Com.  Art.  900-904);  Venezuela  (1862  Code  Com.  Art.  66-70). 


FOREIGN    STATUTES.  363 

sion  and  payment  of  a  bill,  where  the  holder  has  never  had 
the  original  in  his  possession  but  has  only  a  copy.1  And 
many  foreign  statutes  provide  for  the  giving  and  indorsing 
of  copies  in  lieu  of  the  original.2  Some  statutes  require  that 
it  be  noted  on  the  copy  where  the  copy  ends  and  the  original 
indorsements  begin.3  And  in  some  countries  payment  cannot 
be  made  at  all  on  a  copy  without  production  of  at  least  one 
of  the  original  parts.4 

Russia  (1862  Exch.  Law  Art.  583-4) ;  Sweden  (1851  Exch.  Law  U  67,  69) ; 
Switzerland  ^Exch.  Laws,  1859  Berne,  1863  Basle,  \  71-2). 

2 Argentine  Republic  (i862  Code  Com.  Art.  772);  Austria  (1850  Exch.  Law 
Art.  70-72);  Bolivia  (1834  Code  Com.  Art,  360);  Brazil  (-1850  Code  Com. 
Art.);  Chili  (1865  Code  Com.  Art.  629);  Colombia  (1853  Code  Com.  Art. 
395) ;  Costa  Rica  (1S53  Code  Com.  Art.  384) ;  Ecuador  (1829  Code  Com.,  as 
in  Spain) ;  Germany  (1848  Exch.  Law  Arts.  70-72,  74-76) ;  Mexico  (1854  Code 
Com.  Art.  331);  Nicaragua  (1869  Code  Com.  Art.  247);  Peru  (1853  Code 
Com.  Art.  397) ;  Salvador  (1855  Code  Com.  Art.  392) ;  Spain  (1829  Code  Com. 
Art.  437);  Switzerland  (Exch.  Laws,  1859  Berne,  1863  Basle,  §  74-76)  ;  Uru- 
guay (1865  Code  Com.  Art.  799) ;  Venezuela  (1862  Code  Com.  Art.  6). 

3Hungary  (1861  Exch.  Law  g  24) ;  Sweden  (1851  Exch.  Law  g  68). 

'Bolivia  (1834  Code  Com.  Art.  397) ;  Chili  (1865  Code  Com.  Art.  720) ;  Col- 
ombia (1853  Code. Com.  Art.  460);  Costa  Rica  (1853  Code  Com.  Art.  453); 
Ecuador  (1829  Code  Com.,  as  in  Spain) ;  Mexico  (1854  Code  Com.  Art.  398) ; 
Nicaragua  (1869  Code  Com.  Art.  281) ;  Peru  (1853  Code  Com.  Art.  461) ;  Sal- 
vador (1855  Code  Com.  Art.  459) ;  Spain  (1829  Code  Com.  Art.  506). 


364  CAPACITY GENERAL    PRINCIPLES. 


CHAPTER  VIII. 

CAPACITY 


/.  Civil  Restrictions. 

II.  Alien  Enemies. 

III.  Idiots  and  Lunatics. 

IV.  Drunkards. 
V.  Infants. 


I.    CIVIL   RESTRICTIONS. 

244.  General  Principles. 

245.  Civil  Restrictions — Merchants. 

246.  Clergy — Soldiers— Farmers. 

247.  Felons— Bankrupts. 

§  244.  General  Principles. — In  general  all  persons  who 
can  make  a  legal  contract  can  become  parties  to  commercial 
paper.  Want  of  capacity  may  be  either  natural,  legal  or 
political,  according  as  it  proceeds  from  mental  unfitness  or 
from  the  requirements  of  local  or  public  law.  Naturally 
incapable  are  idiots,  lunatics  and  all  persons  of  unsound  or 
insufficient  understanding.  Legally  incapable  are  infants, 
married  women  and  corporations,  so  far  as  their  power  is 
restricted  by  law.  And  these  laws  are,  in  some  degree,  based 
on  presumptions  of  natural  incapacity.  Politically  incapable 
are  alien  enemies  and,  to  a  certain  extent,  public  officers  and 
State  and  municipal  governments. 

It  is  to  be  observed  at  the  outset  that  the  making  of  a  note 
or  the  drawing  of  a  bill  of  exchange  is  an  admission  of  the 
payee's  capacity  to  receive  it.1  So,  the  drawing  of  a  bill  of 
exchange  admits  the  payee's  capacity  at  that  time  to  indorse 
it.2     And  in  like  manner  an  acceptor  admits,  and  is  estopped 

•Esley  v.  People,  23  Kans.  510  (1880),  where  the  note  was  made  to  a  State. 
So,  as  to  a  corporation  payee's  existence,  Goodrich  v.  Reynolds,  31  111.  490 
(1863) ;  especially  at  suit  of  a  bona  fide  holder  for  value,  Camp  v.  Byrne,  41 
Mo.  525  (1867) ;  Nashua  F.  I.  Co.  v.  Moore,  55  N.  H.  48  (1874) ;  and  notwith- 
standing a  general  prohibition  against  doing  business  as  a  foreign  corpora- 
tion, Shook  v.  Singer  S.  M.  Co.,  61  Ind.  520  (1878). 

2Collis  v.  Emmet,  1  H.  Bl.  313;  Drayton  v.  Dale,  2  B.  &  C.  293  (1823); 
Phillips  v  Im  Thurn,  18  C.  B.  (n.  s.)  694  (1865);  Brown  v.  Donnell,  49  Me. 


FORMER    RESTRICTIONS.  365 

from  denying,  as  against  a  bona  fide  purchaser  of  the  accepted 
bill,  the  drawer's  capacity  at  that  time  to  bind  himself  as 
drawer.1  So,  an  indorser  cannot  question  the  capacity  of  a 
subsequent,  though  not  immediate,  indorsee  to  acquire  a  note 
or  bill.2 

The  questions  of  capacity  and  authority  of  parties  to  make, 
accept  and  transfer  negotiable  paper  are  governed  by  sub- 
stantially the  same  rules  of  law  that  control  other  contracts. 

§  245.  Former  Restrictions — Merchants. — No  restrictions 
upon  the  capacity  of  a  person  to  enter  into  a  mercantile  con- 
tract by  reason  of  the  character  of  his  trade  or  occupation 
now  exist  in  the  United  States,  although  it  was  once  thought 
that  none  but  merchants  were  capable  of  binding  themselves 
by  a  contract  under  mercantile  law.  The  mercantile  char- 
acter of  a  party  to  commercial  paper  is  now  of  no  importance 
either  in  this  country  or  in  England.3  And  in  these  coun- 
tries all  persons,  who  are  sui  juris  and  have  capacity  and 
understanding  sufficient  for  a  valid  contract,  are  competent 
to  become  parties  to  a  bill  of  exchange,  note  or  check.4 

By  foreign  laws,  however,  distinctions  were  formerly  made, 
and  in  some  cases  still  exist,  in  favor  of  merchants  and  to 
the  exclusion  of  clergymen  and  other  professional  men,  sol- 

421  (1860) ;  Nightingale  v.  Withington,  15  Mass.  272  (1818).  And  this  is  true 
where  the  payee  is  known  by  the  maker  to  be  fictitious,  Lane  v.  Krekle,  22' 
Iowa  399  (1867).  But  the  insanity  of  the  payee  and  indorser  may  be  set  up 
in  defense  by  the  maker,  Burke  v.  Allen,  29  N.  H.  106  (1854) ;  Peaslee  v. 
Bobbins,  3  Mete.  164  (1841). 

hooper  v.  Meyer,  10  B.  &  C.  468  (1830).  So  held  as  to  a  married  woman's 
rapacity,  Smith  v.  Marsack,  18  L.  J.  C.  P.  65  (1848),  and  that  of  a  bankrupt, 
Braithwaite  v.  Gardiner,  8  Q.  B.  473  (1846) ;  and  that  of  a  corporation,  Hal- 
ifax v.  Lyle,  3  Exch.  464  (1849). 

'National  Pemberton  Bank  v.  Porter,  125  Mass.  333  (1878). 

sChitty  20;  Story  on  Bills  g  71;  Story  on  Prom.  Notes  $  61;  Bromwich 
v.  Loyd,  Lutw.  1585  (1697).  In  Fairley  v.  Roch,  Lutw.  891  (1687),  it  was 
held  on  demurrer  that  an  allegation  of  a  custom  of  merchants  as  to  bills 
of  exchange  applicable  to  "  any  merchant  or  other  person  "  was  too  gen- 
eral, but  in  Bromwich  v.  Loyd,  supra,  it  was  said  by  Treby,  C.  J.,  that  no 
allegation  of  custom  was  necessary  and  that  the  law  of  mercantile  bills  of 
exchange  "at  first  extended  only  to  merchants,  strangers  trading  with  English 
merchants,  and  afterwards  to  inland  bills  between  merchants  trading  one 
with  another  in  England,  and  after  that  to  all  traders  and  dealers,  and  of 
late  to  all  persons  trading  or  not." 

4Chitty  20 ;  Sarsfield  v.  Witherly,  2  Vent.  295  ;  Hodges  v.  Steward,  12  Mod. 
36;  S.  C,  1  Salk.  125. 


366  CAPACITY — CIVIL    RESTRICTIONS. 

diers  and  other  enumerated  classes  of  the  inhabitants.  Thus, 
in  Germany  a  person  not  otherwise  capable  of  making  a  legal 
contract  may,  as  a  merchant,  possess  the  power  to  contract 
and  even  to  become  a  party  to  commercial  paper;  and  all 
commercial  paper  is  presumed  to  be  made  in  a  mercantile 
transaction,  unless  the  contrary  be  expressed  on  its  face.1 
In  Spain  and  in  some  of  the  Spanish-American  States,  bills 
and  notes  by  persons  who  are  not  merchants  have  no  mer- 
cantile character,  and  amount  only  to  certificates  of  indebted- 
ness, and  are  subject  only  to  ordinary  courts  and  procedure. 
An  exception  is  made,  however,  as  to  drawer  and  acceptor, 
but  not  indorser,  where  the  consideration  is  shown  to  have 
been  a  mercantile  transaction.2  The  like  rule  and  exception 
prevail  in  Bolivia,  saving,  however,  the  holder's  rights 
against  other  parties  who  are  merchants  and  remain  liable 
according  to  mercantile  law.3  In  Hungary  the  power  of 
drawing  bills  of  exchange  is  conferred  on  merchauts,  manu- 
facturers and  mechanics  of  full  age  and  registered  as  such  in 
the  commercial  court.  Bills  drawn  by  other  citizens  and  on 
them  are  not  commercial  paper.4  In  Denmark  and  in  Switz- 
erland all  persons  who  are  of  full  age  and  competent  to 
acknowledge  a  debt,  can  draw,  accept  and  indorse  bills. 
And  where  any  incapacity  exists  in  one  party  to  commercial 
paper,  it  does  not  affect  the  liability  of  other  parties.5  In 
Chili  all  persons  capable  of  making  a  legal  contract  are 
capable  of  drawing  or  accepting  a  bill  of  exchange.6 

§  246.   Clergy — Soldiers — Farmers. — By  Statute  of  57 

'Thol's  Wechselrecht  118, 119.  But  in  Prussia,  although  an  infant  is  capa- 
ble of  making  a  mercantile  contract,  his  bill  of  exchange  requires  the  ap- 
proval of  the  court,  lb.  By  the  German  Exchange  Law  (Art.  1)  all  persons 
who  are  capable  of  making  a  contract  can  draw  or  accept  a  bill  of  exchange. 

\Spain  (1829  Code  Com.  Art.  434) ;  Colombia  (1853  Code  Com.  Art,  392) ; 
Costa  Rica  (1853  Code  Com.  Art.  381) ;  Ecuador  (1829  Code  Com.  Art.  434) ; 
Peru  (1853  Code  Com.  Art.  391) ;  Salvador  (1855  Code  Com.  Art.  389). 

'Bolivia  (1834  Code  Com.  Art.  367). 

*Hungary  (1861  Exch.  Law  Art.  10).  All  persons,  however,  capable  of 
acquiring  any  right  can  acquire  right  to  a  bill  of  exchange  (lb.  Art.  7^ 

^Denmark  (1825  Exch.  Law  Art.  4) ;  Switzerland  (Basle,  1863  Exch  V.T 
Arts.  1,  2;  Berne,  1859  Exch.  Law  Arts,  1,  2). 

'Chili  (1865  Code  Com.  Art.  622). 


I 


FELONS.  367 

Geo.  III.  c.  99,  spiritual  persons  are  forbidden  to  trade. 
And  it  has  been  held  under  this  act  that  a  joint  stock  com- 
pany, in  which  was  a  beneficed  clergyman,  could  not  bring 
an  action  as  indorsee  of  a  bill  of  exchange.1  The  Russian 
law  declares  all  religious  persons  incompetent;2  the  Hun- 
garian law,  all  clergymen  of  any  religion  and  all  members 
of  religious  orders.3  In  Hungary,  too,  all  persons  in  active 
military  service  are  incapable  of  drawing  a  bill  of  exchange.4 
So,  in  Servia,  all  soldiers  and  military  garrisons  under  the 
rank  of  sub-lieutenant,  their  bills  of  exchange  having'  force 
only  as  acknowledgments  of  debt.5  So,  in  Russia,  all  soldiers 
in  the  lower  military  grades.6 

In  Servia,  too,  farmers  cannot  draw  or  accept  a  bill  of  ex- 
change.7 So,  in  Russia,  farmers  who  do  not  own  land  and 
have  no  trading  license.8 

§  247.  Felons — Bankrupts. — In  England  an  attainted  felon 
cannot  take  a  bill  or  note  by  indorsement.9  Nor  can  a  bank- 
rupt before  receiving  his  discharge,  although  it  might  be 
held  otherwise  after  a  long  lapse  of  years.10  But  if  a  bill  of 
exchange  has  been  transferred  by  a  bankrupt  before  petition 
filed,  his  indorsement  afterward  will  be  lawful  to  make  the 
transfer  perfect.11  And  in  such  case  his  assignee  may  be 
directed  by  the  court  to  complete  the  transfer  by  an  indorse- 
ment without  recourse.12 

Under  the  U.  S.  Bankrupt  Act  of  1867,  it  has  been  held 
that  a  check,  drawn  before  an  assignment  in  bankruptcy,  but 

1  Hall  v.  Franklin,  3  M.  &  W.  259 ;  now  remedied  by  1  and  2  Vict.  c.  10. 

'Russia  (1862  Exch.  Law  Art.  546). 

'Hungary  (1861  Exch.  Law  Art.  11). 

'Hungary  (1861  Exch.  Law  Art,  11). 

bServia  (1860  Code  Com.  Arts.  76,  77,  78). 

"Russia  (1862  Exch.  Law  Art.  546). 

''Servia  (1860  Code  Com.  Arts.  76,  77,  78). 

'Russia  (1862  Exch.  Law  Art.  546). 

'Bullock  v.  Dodds,  2  B.  &  Aid.  258. 

10 Pitt  v.  Chappelow,  8  M.  &  W.  616  (1841). 

"Smith  v.  Pickering,  Peake  50  (1791) ;  Hersey  v.  Elliot,  67  Me.  526  (1878). 

"Ex  parte  Mowbray,  1  Jac.  &  W.  428  (1820). 


368  CAPACITY — CIVIL   RESTRICTIONS. 

not  presented  until  afterward,  will  not  transfer  the  fund.1 
But  a  bankrupt  may  draw  on  his  own  check  money  depos- 
ited in  bank  after  petition  in  bankruptcy  filed.2  So,  the 
pledgee  of  a  bond  may  sell  it  notwithstanding  the  bankruptcy 
of  the  pledgor.3  The  effect  of  bankruptcy  as  a  transfer  of 
commercial  paper,  or  by  way  of  defense  other  than  for  want 
of  original  capacity  on  that  ground,  will  be  considered  in  a 
later  part  of  this  work.  The  U.  S.  Bankrupt  Acts  have 
given  rise  to  few  questions  relating  to  the  capacity  of  a  party 
to  make  commercial  paper.  As  regards  his  power  to  trans- 
fer such  paper,  it  is  rather  a  question  of  property  left  in  him. 
than  of  capacity. 

1  First  Nat.  Bank  v.  Gish,  72  Penna.  St.  13  (1872). 

*Mays  v.  Manufacturers'  Nat.  Bank,  64  Penna.  St.  74  (1870). 

•Jerome  v.  McCarter,  4  Otto  734  (1876}. 


WHO    ARE    ALIEN    ENEMIES.  8G9 


II.    ALIEN    ENEMIES. 

248.  Who  are  Alien  Enemies. 

249.  Principles  Applied  to  American  Civil  War. 

250.  Contracts  between  Alien  Enemies — Insurance. 

251.  Agency — Partnership. 

252.  Contracts  when  Valid. 

253.  Commercial  Paper. 

254.  Drawee  an  Alien  Enemy. 

255.  Payee  or  Indorsee  an  Alien  Enemy. 

§  248.  Who  are  Alien  Enemies. — It  has  been  said  that  for 
political  reasons  alien  enemies  are  incapable  of  becoming 
parties  to  commercial  paper.  And  this  incapacity  extends 
for  the  protection  of  the  State  to  all  contracts  between  citi- 
zens of  the  State  and  their  alien  enemies  pending  the  con- 
tinuance of  a  war.  "  Every  resident  of  a  hostile  place  or 
country,  even  though  a  subject,  is  regarded  as  an  alien 
enemy."1  This  applies  indiscriminately  to  all  persons  within 
the  belligerent  lines,  excepting,  of  course,  such  as  are  actu- 
ally there  in  the  service  of  their  own  government  in  a  mili- 
tary capacity  or  otherwise.2  Thus,  a  naturalized  citizen  of 
the  United  States  domiciled  in  England,  is  an  alien  enemy 
as  to  American  citizens  during  war  with  England  ;3  although 
immediately  upon  his  departure  for  this  country  he  would 
cease  to  be  so.4  In  like  manner,  a  British  subject,  who  is  a 
naturalized  citizen  of  a  neutral  State,  is  to  be  regarded  in 
England  as  an  alien  enemy  while  voluntarily  residing  in  the 
enemy's  country.5  But  a  note  made  by  a  British  subject  to 
the  citizen  of  a  neutral  State  residing  in  an  enemy's  country 
may  be  sued  upon  in  the  English  courts.6  And  the  subject 
of  a  neutral  State  taken  prisoner  on  an  enemy's  vessel  and 

1  Wharton's  Conflict  of  Laws  \  737a. 

2Hennen  v.  Gilman,  20  La.  An.  240  (1868). 

sThe  Francis,  1  Gall.  614  (1813),  Story,  J.,  saying  in  this  case:  "For  all 
commercial  purposes  it  is  quite  immaterial  which  is  the  native  or  adopted 
country  of  a  party.  He  is  deemed  a  merchant  of  the  country  where  he  re- 
sides and  carries  on  trade." 

"The  Indian  Chief,  3  C.  Rob.  12  (1800). 
'O'Mealey  v.  Wilson,  1  Camph.  482  (1808). 
'Houriet  v.  Morris,  3  Campb.  303  (1812). 

Y 


370  CAPACITY ALIEN    ENEMIES. 

brought  to  England  is  no  longer  to  be  regarded  as  an  alien 
enemy,  but  may  contract  and  sue  like  other  citizens  in  Eng- 
land.1 A  foreign  corporation  is  an  alien  enemy  under  the 
same  circumstances  as  an  individual.2  As  a  person  takes  his 
character  of  enemy  or  neutral  in  general  from  the  place 
where  he  is  found,  it  follows  that  a  British  citizen  domiciled 
in  a  neutral  country  may  lawfully  trade  in  that  country  with 
the  citizens  of  another  country  at  war  with  Great  Britain.3 

§  249.  Principles  Applied  to  American  Civil  War. — The 
principles  relating  to  alien  enemies  apply  to  their  full  extent 
to  the  civil  war  in  the  United  States,  as  regarded  citizens  of 
the  two  belligerent  sections.4  The  beginning  and  end  of  the 
war  have  been  judicially  determined  by  the  courts  in  various 
parts  of  the  country.  Thus,  it  has  been  held  that  the  war 
ended  east  of  the  Mississippi  river,  upon  the  President's 
proclamation  of  June  13th,  1865  ;5  and  in  South  Carolina, 
that  the  war  extended  from  the  19th  day  of  April,  1861,  to 
April  1st,  1866.6  Citizens  of  seceded  States  were,  however, 
not  alien  enemies  before  the  secession  of  their  States.7  In 
Texas  it  has  been  held  that  intercourse  between  its  citizens 
and  those  of  the  State  of  Illinois  was  lawful  until  the  pas- 

^parenburgh  v.  Bannatyne,  1  Bos.  &  P.  163  ;  Rex  v.  Desperado,  1  Taunt.  28. 

^Society  for  Propagation  of  the  Gospel  v.  Wheeler,  1  Gall.  132  (1814).  In 
time  of  peace,  however,  a  foreign  corporation,  like  any  other  foreign  citi- 
zen, may  make  and  enforce  contracts  in  other  States,  unless  excluded  by 
the  statutes  >>r  policy  of  such  State,  Williams  v.  Creswell,  51  Miss.  817  (1876). 
So,  a  promissory  note  made  bv  an  Indian  is  valid,  Rubidaux  v.  Vallie,  12 
Kans.  28  (1873)/ 

sChitty  19;  Bell  v.  Reid,  1  M.  &  S.  726. 

♦Montgomery  v.  United  States,  15  Wall.  395;  Prize  Cases,  2  Black  667 
(1862);  Shortridge  v.  Macon,  Chase  Dec.  136;  Hennen  v.  Gilman,  20  La. 
An.  240  (1868);  Bonneau  v.  Dinsmore,  23  How.  Pr.  397  (1861);  Sanderson 
v.  Morgan,  25  lb.  141  (1863)  ;  S.  C,  39  N.  Y.  231 ;  McStea  v.  Matthews,  3  Dalv 
349(1871);  Philips  v.  Hatch,  1  Dill.  571  (1871);  Ensley  v.  United  States,  6 
Ct.  Claims  282  (1870);  Cutner  v.  United  States,  lb.  415;  Brown  v.  Hiatt,  1 
Dill.  381  ;  Lacy  v.  Sugarrnan,  12  Heisk.  354  (1873).  In  the  words  of  Grier, 
J.,  in  the  Prize  Cases,  2  Black  667, ''  it  is  not  necessary  to  constitute  war  that 
both  parties  should  be  acknowledged  as  independent  nations  or  sovereign 
States.  A  war  may  exist  where  one  of  the  belligerents  claims  sovereign 
rights  as  against  the  other." 

5Semmes  v.  City  Ins.  Co.  36  Conn.  513  (1869). 

•Gooding  v.  Varn,  Chase  Dec.  280. 

'United  States  v.  Boxes  of  Arms,  1  Bond  446  (1861). 


CONTRACTS    BETWEEN    ALIEN    ENEMIES.  371 

sage  of  the  Act  of  Congress  of  July,  1861.1  And  in  Green- 
brier county,  Virginia,  which  was  excepted  from  the  opera- 
tion of  this  Act.  a  sale  of  personal  property  at  a  later  period 
to  a  bona  .fide  purchaser  was  held  to  be  valid.2 

A  note  is  not  presumed  to  have  been  made  between  alien 
enemies  because  secured  by  a  mortgage  dated  six  months 
later,  which  showed  the  parties  to  be  then  resident  in  differ- 
ent belligerent  sections.3  But  a  citizen  of  Savannah  or  Mem- 
phis, after  such  city  had  been  brought  within  the  Federal 
lines,  was  the  alien  enemy  of  a  citizen  of  Alabama,  although 
intercourse  between  the  cities  referred  to  and  the  rest  of  the 
United  States  had  been  prohibited  by  the  President's  procla- 
mation of  April,  1863.4  On  the  other  hand,  it  has  been  held 
in  a  case  regarding  the  Statute  of  Limitations  that  a  citizen 
of  New  Orleans  was  an  alien  enemy,  even  when  the  city  was 
occupied  by  United  States  troops.0  But  a  contract  made 
between  a  British  subject  domiciled  in  New  Orleans  and  a 
loyal  citizen  of  the  United  States  residing  there,  but  acting 
as  agent  for  an  alien  enemy,  has  been  held  to  be  void.6  This 
has  also  been  held  to  be  the  case  with  a  contract  between  a 
Danish  subject  domiciled  in  New  York  and  an  alien  enemy 
who  was  temporarily  there,  but  resided  in  Texas.7 

§  250.  Contracts  between  Alien  Enemies — Insurance. — It 
is  a  general  rule  that  all  contracts  between  alien  enemies 
during  war  are  void.8     But  existing  and  continuing  contracts 

'McCormick  v.  Arnspiger,  38  Tex.  569  (1873). 

1  Hawver  v.  Seibert,  4  W.  Va.  586  (1871). 

s Hyatt  v.  James,  2  Bush  463  (1867). 

'Ensley  v.  United  States,  6  Ct.  Claims  282  (1870);  Clitner  o.  United  States, 
lb.  415;  Lacy  v.  Sugarman,  12  Heisk.  354  (1873).  And  see  U.  b.  .^tat.  July 
2d,  1864,  \  4. 

"Perkins  v.  Rogers,  35  Ind.  124  (1871). 

•Montgomery  v.  United  States,  15  Wall.  395. 

'Habricht  v.  Alexander,  1  Woods  413  (1871). 

•Byles  70;  Chitty  18;  1  Daniel  221 ;  1  Edwards  g  44;  1  Parsons  151 ;  Story 
on  Bills  \  99;  Story  on  Prom.  Notes  I  94;  Wheaton's  Internat.  Law  392; 
Wharton's  Conflict  of  Laws  \  497;  Willison  v.  Pattesoh,  7  Taunt.  439;  Gist 
v.  Mason,  1  T.  R.  84  (1786);  Potts  v.  Bell,  8  lb.  54S :  Furtado  v.  Rogers,  3 
Bos.  &  P.  191 ;  The  Indian  Chief.  3  C.  Rob.  12  (1800) ;  The  Rapid,  8  Cranch 
155  (1814);  Scholefield  v.  Eichelberger,  7  Pet.  586  (1833) ;  Griswold  v.  Wad- 
•dington,  16  Johns.  438  (1819),  affirming  15  lb.  57 ;  The  Reform,  3  Wall.  617; 


372  CAPACITY ALIEN    ENEMIES. 

are  suspended  and  not  annulled  by  war.1  If  goods  are  de- 
livered after  the  war  has  come  to  an  end,  upon  a  sale  made 
during  the  war,  this  is  a  war  contract  and  void  as  such,  and 
no  action  lies  for  the  goods.2 

On  the  other  hand,  a  contract  of  insurance  is  not  annulled 
but  merely  suspended  by  the  war.3  So,  if  insurance  pre- 
miums are  not  paid  during  the  war,  payment  made  and 
accepted  after  it  is  ended  will  revive  the  contract  of  insur- 
ance.4 But  where  the  payment  of  the  premium  is  made  a 
condition  precedent  in  the  policy,  its  non-payment  will 
work  a  forfeiture  although  made  unavoidable  by  the  out- 
break of  the  war.5  And  in  such  case  the  tender  of  the  un- 
paid premium  after  the  close  of  the  war  will  not  revive  the 
policy.6  If,  however,  the  premiums  were  tendered  during 
the  war  to  a  local  agent  residing  in  the  same  country,  the 
policy  will  not  oe  forfeited  and  recovery  may  be  had  upon 
the  death  of  uie  person  insured  during  the  war.7 

§  251.  Agency — Partnership. — All  contracts  of  agency 
having  for  their  object  the  protection  of  property  or  collec- 
tion of  money,  and  not  involving  communication  through  the 
enemy's  lines,  remain  valid  and  unrevoked  by  war.     This  is 

United  States  v.  Grossmeyer,  9  Wall.  72;  Crawford  v.  Penn,  3  Wash.  C.  C. 
484  (1819) ;  Noblom  v.  Milbourne,  21  La.  An.  641  (1869) ;  Graham  v.  Merrill, 
5  Coldw.  622  (1868). 

ll  Daniel  225;  1  Edwards  §  44;  Story  on  Bills  g  99;  Story  on  Prom.  Notes 
§  116;  Hanger  v.  Abbott,  6  Wall.  540  (1867). 

2Scholeneld  v.  Eichelberger,  7  Pet.  586  (1833). 

"Connecticut  Life  Ins.  v.  Duerson,  28  Gratt.  630  (1877). 

*Cohen  v.  N.  Y.  Life  Ins.  Co.,  50  N.  Y.  610;  Hamilton  v.  Mutual  Life  Ins. 
Co.,  9  Blatchf.  234. 

5Manhattan  Life  Ins.  Co.  v.  Buck,  3  Otto  24;  N.  Y.  Life  Ins.  Co.  v.  Stat- 
ham,  3  Otto  24  (1876),  Bradley,  J.,  saying  in  this  case,  "The  doctrine  of  the 
revival  of  contracts  suspended  during  the  war  is  one  based  on  considera- 
tions of  equity  and  justice,  and  cannot  be  invoked  to  revive  a  contract 
which  it  would  be  unjust  or  inequitable  to  revive."  But  see,  contra,  Hill- 
yard  v.  Mutual  Benefit  Ins.  Co.,  8  Vroom  444  (1874),  affirming  6  lb.  415; 
Semmes  v.  City  Ins.  Co.,  6  Blatchf.  445;  S.  C,  36  Conn.  551. 

"O'Reilly  v.  Mutual  Life  Ins.  Co.,  2  Abb.  Pr.  (n.  s.)  167  (1866) ;  Dillard  v. 
Manhattan  Life  Ins.  Co.,  44  Ga.  119. 

7 Manhattan  Life  Ins.  Co.  v.  Warwick,  20  Gratt.  614;  N.  Y.  Life  Ins.  Co.  v. 
Clopton,  7  Bush  179 ;  Statham  v.  New  York  Life  Ins.  Co.,  45  Miss.  581 ;  Sand* 
v.  N.  Y.  Life  Ins.  Co.,  50  N.  Y.  626. 


AGENCY.  373 

true  of  agencies  to  collect  money,1  to  protect  the  princi- 
pal's property,2  or  to  receive  payment  on  account  of  a  former 
debt ;  but  not  to  make  fresh  purchases.3 

Where  the  debtor  is  an  alien  enemy  and  the  creditor  is  a 
citizen,  the  creditor's  rights  will  not  be  made  to  suffer  by  the 
absence  or  legal  incapacity  of  the  debtor.  Thus,  it  has  been 
held  that  lands  mortgaged  in  Illinois,  with  a  power  of  sale,  by 
one  who  afterwards  becomes  a  resident  in  the  Confederate 
States,  may  be  lawfully  sold  during  the  war  and  notwith- 
standing the  fact  that  the  debtor  has  become  an  alien  enemy.4 
Other  courts,  however,  have  held  that  a  power  of  attorney 
for  the  sale  of  land  is  revoked  by  war.5  Lawful  payment  of 
a  debt  may  be  made  to  a  resident  and  friendly  agent  of  an 
alien  enemy.6  And  delivery  of  goods  after  the  end  of  the 
war  may  be  lawfully  made  under  an  agency  created  and  con- 
tract executed  before  the  war.7  But  an  agency  cannot  be 
created  after  the  outbreak  of  a  war.8 

The  relation  of  partners,  like  that  of  principal  and  agent, 
is  dissolved  by  war.  And  when  such  partners  have  become 
alien  enemies,  the  contract  of  one  is  no  longer  binding  upon 
the  firm.9  Nor  can  a  partner  who  is  an  alien  enemy  indorse 
a  note  belonging  to  the  firm,  so  as  to  transfer  the  interest  of 

baloney  v.  Stephens,  11  Heisk.  738  (1872) ;  Hale  v.  Wall,  22  Gratfc.  424 
(1872) ;  Fisher  v.  Kintz,  9  Kans.  501  (1872).  And  all  agencies  between  citi- 
zens of  slave-holding  States  were  expresslv  saved  in  Tennessee  by  the  act 
of  1861. 

'Buford  v.  Speed,  11  Bush  338  (1875). 

•"United  States  v.  Lapene,  17  Wall.  601  (1873). 

'University  v.  Finch,  18  Wall.  106  (1873);  Willard  v.  Boggs,  56  111.  163 
(1870);  Harper  v.  Ely,  lb.  179;  De  Jarnette  v.  De  Giverville,  56  Mo.  440 
(1874). 

5Conley  v.  Burson,  1  Heisk.  145  (1870).  And  see  Howell  v.  Gordon,  40 
Ga.  302  (1869).  But  where  a  sale  of  land  was  made  under  such  a  power,  an 
action  was  allowed  after  the  war  to  recover  the  purchase-money  from  the 
purchaser,  King  v.  Hanson,  4  Call  259  (1790). 

6Sands  v.  N.  Y.  Life  Ins.  Co.,  59  Barb.  556  (1871);  Robinson  v.  Intermit. 
Ins.  Co.,  42  N.  Y.  54  (1870) ;  Stoddart  v.  United  States,  6  Ct.  Claims  340  (1870) ; 
Bernheimer  v  United  States,  5  lb.  549.  But  see,  contra,  Blackwell  v.  Wil- 
lard, 65  N.  C.  555  (1871),  where  the  payment  was  made  in  settlement  of  a 
suit  pending  at  the  outbreak  of  the  war. 

'Buchanan  v.  Curry,  19  Johns.  137  (1821). 

"Cramer  v.  United  States,  6  Ct.  Claims  381 ;  S.  C,  7  lb.  302. 

•Griswold  v.  Waddington,  16  Johns.  438  (1819),  affirming  15  lb.  57;  Woods 
V.  Wilder,  4:*  N.  Y.  164  (1870). 


374  CAPACITY ALIEN    ENEMIES. 

his  former  partner.1  Where,  however,  partners  who  have 
made  a  firm  note  before  the  outbreak  of  war  afterwards  be- 
come alien  enemies,  their  individual  liability  as  makers  will 
not  be  affected.2  And  it  has  been  held  that  a  partner  in 
New  York  will  be  bound  by  the  acceptance  of  a  bill  of  ex- 
change by  his  partner  in  the  Confederate  States  prior  to  th« 
Act  of  Congress  of  July,  1861.3 

§  252.  Contracts  between  Alien  Enemies — When  Valid. — 
There  are  some  exceptions  to  the  rule  making  void  contracts 
between  alien  enemies,  these  exceptions  being  made  for  the 
necessary  protection  by  every  State  of  its  own  citizen.  Thus, 
contracts  by  a  prisoner-of-war  for  necessaries,  though  made 
with  an  alien  enemy,  are  lawful/  So,  a  note  given  in  pay- 
ment for  a  license,  to  protect  a  ship  against  capture  by  the 
enemy,  is  valid.5  And  an  enemy's  license  of  this  sort  will 
not  render  void  a  ship's  policy  of  insurance.6  Moreover, 
contracts  between  alien  enemies  may  be  permitted  by  special 
license  of  the  government.  But  such  license  must  be  proved 
by  the  party  alleging  it.7 

§  253.  Commercial  Paper. — The  principle  making  void 
contracts  between  alien  enemies  applies  with  full  force  to 
commercial  paper.8  And  the  exceptions  above  referred  to 
are  also  applicable  to  it.  Thus,  a  bill  of  exchange  given 
to  an  alien  enemy  for  the  ransom  of  a  captured  ship,  is 
valid.9     So,  too,  if  given  for  repairs  made  to  a  ship  in  the 

'Bank  of  New  Orleans  v.  Matthews,  49  N.  Y.  12  (1872). 

2 Booker  v.  Kirkpatrick,  26  Gratt.  145  (1875). 

sMcStea  v.  Matthews,  3  Daly  349  (1871);  affirmed  50  N.  Y.  166  (1872); 
Matthews  v.  McStea,  1  Otto  7  (1875). 

*1  Parsons  152;  Story  on  Bills  I  101;  Story  on  Prom.  Notes  \  96. 

6Coolidge  v.  Ingler,  13  Mass.  26. 

"Hayward  v.  Blake,  12  Mass.  176. 

7  Lacy  v.  Sngarman,  12  Heisk.  354  (1873);  In  re  Ouachita  Cotton,  6 
Wall.  531. 

81  Daniel  222;  1  Edwards  §  44;  1  Parsons  151;  Story  on  Bills  \  100;  Story 
on  Prom.  Notes  $  95 ;  Wheat.  Intermit.  Law  392  ;  Woods  v.  Wilder,  43  N.  Y. 
164  (1870);  Philips  v.  Hatch,  1  Dill.  571  (1871);  McVeigh  v.  Bank  of  the 
Old  Dominion,  26  Gratt.  785  (1875). 

9Ricord  v.  Bettenham,  3  Burr.  1734.  Much  more  a  bill  of  exchange  for 
such  consideration  given  to  an  alien  friend,  Maisonnaire  v.  Keating,  2  Gall. 
325. 


PAYEE    OR    INDORSEE    AX    ALIEX    ENEMY.  o/O 

enemy's  country  under  protection  of  a  cartel.1  But  a  bill  of 
exchange  drawn  by  a  British  prisoner,  in  France,  upon  a 
British  subject  and  made  payable  to  an  alien  enemy,  is  void, 
in  England,  by  statute.2 

§  254.  Drawee  an  Alien  Enemy. — This  has  been  held  to 
be  the  case  also  with  a  bill  of  exchange  drawn  by  a  citizen 
of  the  State  of  Georgia,  on  a  citizen  of  the  State  of  New 
York,  after  the  outbreak  of  the  war  ;3  or  by  a  citizen  of  Mo- 
bile, while  it  was  in  the  Confederate  lines,  on  a  citizen  of 
New  Orleans,  while  it  wTas  in  the  control  of  the  United  States 
troops,  intercourse  between  the  two  being  then  prohibited.4 
Such  paper,  however,  has  been  held  to  be  valid  in  the  hands 
of  a  bona  fide  holder  for  value.5  So,  too,  if  transferred  to 
the  United  States  government.6  And  where  such  a  bill  is 
invalid,  it  has  been  held  that  a  payee,  who  took  it  in 
ignorance  of  the  capture  of  New  Orleans  and  of  its  posses- 
sion by  Federal  troops,  might  recover  all  payments  made 
by  him  for  it.7 

§  255.  Payee  or  Indorsee  an  Alien  Enemy. — In  like  man- 
ner, a  bill  of  exchange  is  void  if  the  drawer  and  drawee  are 
both  citizens  of  the  United  States  and  the  payee  is  an 
enemy;8  or  if  the  drawer  and  payee  are  alien  enemies  and 
the  drawee  a  citizen  of  the  United  States.9  But  if  the  bill 
is  drawn  by  a  citizen  of  the  United  States,  on  an  alien 
enemy,  in  favor  of  another  alien  enemy,  and  is  delivered  by 
the  drawer  to  another  citizen  of  the  United  States,  on  an 
agreement  that  he  will  pay  the  drawer  whatever  sum  of 
money  is  paid  by  the  drawee  to  the  payee,  this  agreement  will 

'Suckley  v.  Furse,  15  Johns.  338  (181S). 

234Geo.  in.  c.  <H2. 

'Woods  v.  Wilder,  43  N.  Y.  1G4  (1870). 

♦Tarleton  v.  Southern  Bank  of  Ala.,  49  Ala.  229  (1873). 

BLacy  v.  Sugarman,  12  Hei.sk.  354  (1S73). 

6 United  States  v.  Barker,  1  Paine  156  (1820). 

7  Williams  v.  Mobile  Savings  Bank,  2  Woods  501  (1875). 

'Craft  v.  United  States,  12  Ct.  CI.  178  (1876). 

"Moore  v.  Foster,  Chase  Dec.  222  (1868) ;  Billgerry  v.  Branch,  19  Gratt.  393 
(1869);  Tarleton  v.  Southern  Bank,  49  Ala.  229(1873).  And  payment  by 
such  a  bill  is  no  payment  unless  accepted  as  such,  Moore  v.  Foster,  supra. 


376  CAPACITY ALIEN    ENEMIES. 

be  valid,  as  it  involves  no  transfer  of  funds  to  the  enemy's 
country.1 

The  indorsement  of  a  note  in  the  enemy's  country  and  its 
delivery  to  a  messenger  to  deliver  in  this  country,  during  the 
war,  to  one  of  our  own  citizens,  is  illegal.2  So,  a  bill  drawn 
in  France  by  an  alien  enemy  residing  then  in  France,  upon 
a  British  subject  residing  in  England,  and  indorsed  to  a 
British  subject  residing  in  France,  is  illegal.3 

But  the  transfer  of  a  note  in  this  country  is  valid,  although 
the  maker  may  be  an  alien  enemy  and  the  note  itself  in  the 
hands  of  the  enemy's  government.4  And  an  indorsee  in  the 
United  States  may  sue  his  indorser  here  upon  an  indorsement 
made  here  of  a  certificate  of  deposit  made  in  the  enemy's 
country  between  alien  enemies,  and  void  on  that  account.5 
And  it  has  been  held  that  an  indorsement  to  an  alien  enemy 
by  a  British  subject  residing  in  France,  who  is  the  payee  of 
a  bill  of  exchange  drawn  there  by  a  British  prisoner  upon  a 
British  subject  in  England,  will  be  valid  in  England.6 

Although  a  note  between  alien  enemies  is  void,  a  subse- 
quent promise  to  pay  it  may  be  valid.7  This  is  true,  although 
payment  of  such  instrument  during  the  war  be  expressly 
forbidden  by  statute.8  In  like  manner,  a  note  may  be  law- 
fully given  after  the  end  of  the  war  in  payment  of  a  debt 
created  during  the  war.9  And  it  should  be  in  all  cases  remem- 
bered that  the  legality  of  a  payment  made  to  an  alien  enemy 
and  received  by  him,  cannot  be  questioned  by  himself.10 

'Haggard  v.  Conkwright,  7  Bush  16  (1869). 
2 Russell  v.  Russell,  1  MacArth.  263  (1874). 
3Willison  v.  Patteson,  7  Taunt.  439  (1817). 
♦Morris  v.  Poillon,  50  Ala.  403  (1873). 
5 Morrison  v.  Lovell,  4  W.  Va.  346  (1870). 

6Antoine  v.  Morshead,  6  Taunt.  237;  S.  C,  1  Marsh.  558;  Daubuz  v.  Mora- 
head,  6  Taunt.  332. 
'Ledoux  v.  Buhler,  21  La.  An.  130  (1869). 
8Duhamel  v.  Pickering,  2  Stark.  90. 
'Borland  v.  Sharp,  1  Root  178  (1790). 
10 Rogers  v.  Gibbs,  25  La.  An.  563  (1873). 


lunatic's  contracts.  377 


III.    IDIOTS    AND    LUNATICS. 

256.  Lunatic's  Contracts — Voidable  or  Void. 

257.  Defense  Admissible,  when. 

258.  What  Amounts  to  Lunacy. 

259.  Pleading — Evidence. 

260.  Inquisition — How  far  Conclusive. 

§  256.  Lunatic's  Contracts — Voidable  or  Void. — All  per- 
sons of  unsound  mind — idiots,  lunatics  and  imbeciles — are 
by  nature  incapable  of  entering  into  any  contract,  commer- 
cial or  otherwise,  requiring  mental  understanding  and  con- 
sent. The  law  throws  its  protection  over  all  such  persons 
by  declaring  their  contracts  void.1  A  deed  by  such  a  person 
is  absolutely  void,2  especially  where  it  is  merely  voluntary.3 
So,  an  implied  authority  to  an  agent  to  give  or  surrender  a 
note  is  revoked  by  the  principal's  lunacy.4  In  general,  how- 
ever, it  is  more  correct  to  say  that  a  lunatic's  contract 
is  voidable.5  It  may  be  avoided  by  the  personal  representa- 
tive of  the  lunatic,  or  by  his  guardian,  or  by  a  subsequent 
grantee  of  the  property  which  the  lunatic  has  conveyed.* 
But  it  cannot  be  avoided  by  the  other  party  to  the  contract.7 

1  Byles  63  :  1  Daniel  215 ;  Story  on  Prom.  Notes  I  101 ;  Sentance  v.  Poole,  3 
C.  &  P.  1  (1827) ;  Baxter  v.  Lord  Portsmouth,  2  lb.  178;  S.  C,  5  B.  &  C.  170. 

2  Van  Deusen  v.  Sweet,  51  N.  Y.  378  (1873).  And  the  property  conveyed 
may  be  recovered,  Alston  v.  Boyd,  6  Humph.  504  (1846).  So,  too,  in  an  ac- 
tion brought  for  that  purpose  by  the  lunatic's  guardian,  Gibson  v.  Soper,  6 
Gray  279  (1856). 

■Manning  v.  Gill,  L.  K.  13  Eq.  485  (1872). 

4Thus,  where  a  surrender  of  a  note  was  made  by  the  wife  of  a  dying  luna- 
tic to  whom  it  belonged,  the  surrender  was  held  not  to  be  binding,  Davis 
v.  Lane,  10  N.  H.  156  (1839).  A  person  who  is  incompetent  cannot  authorize 
an  agent  to  execute  a  valid  note  for  him,  Shotts  v.  Boyd,  77  Ind.  223  (1881). 

51  Edwards  \  24;  Story  on  Prom.  Notes  \  101,  note  by  Mr.  Perkins.     So 
held  of  deeds,  Jackson  v.  Gumaer,  2  Cow.  552  (1826);  Allis  v.  Billings,  6 
Mete.  415  ;  Wait  v.  Maxwell,  5  Pick.  217  ;  Gibson  v.  Soper,  6  Gray  279  I  1  - 
Ingraham  v.  Baldwin.  9  N.  Y.  45;  Gates  v.  Woodson,  2  Dana  462 
Hovey  v.  Hobson,  53  Me.  451  (1866) ;  Elston  v.  Jasper,  45  Tex.  409  (1876) 
Breckinridge  v.  Ormsby,  1  J.  J.  Marsh.  236  (1829) ;  Fitzgerald  v.  Bred.  9  Sm. 
&  M.  94  (1847) ;    Lilly  v.  Waggoner,  27  111.  395  (1862) ;  Arnold  v.  Richmond 
Iron  Works,  1  Gray  434  (1854) ;  and  of  notes,  in  Indiana,  notwithstanding  a 
statute  apparently  declaring  them  void,  Crouse  v.  Hoi  man,  19  Ind.  30  ( 1S»>"2) . 

*By  personal  representatives  or  heirs,  Breckinridge  v.  Ormsby,  1  J.  J.  Marsh. 
236  (1829);  Hovey  v.  Hobson,  53  M<>.  451  (1866).  By  guardian,  Crouse  v. 
Holman,  19  Ind.  30  (1862) ;  Gibson  v.  Soper.  6  Gray  279  (1856).  By  grantee 
under  subsequent  deed,  Cates  v.  Woodson,  2  Dana  452  (1834). 

'Allen  v.  Berryhill,  27  [owa  534  (1869 


378  CAPACITY — IDIOTS    AND    LUNATICS. 

It  is  voidable  rather  than  void,  because  it  is  capable  of 
ratification.1  But  the  contracts  of  a  lunatic,  it  is  said,  after 
office  found  are  absolutely  void.2  It  seems,  however,  that 
even  such  contracts  may  be  ratified.3  And  a  subsequent 
inquisition,  finding  the  maker  of  a  note  to  have  been  insane 
at  the  time  of  making  it,  will  not  affect  the  instrument  in 
the  hands  of  a  bona  fide  holder  for  value  before  maturity.* 
So,  the  force  of  an  inquisition  may  be  suspended  during  a 
lucid  interval  to  enable  the  lunatic  to  make  a  will.5 

A  distinction  is  made,  in  regard  to  this  question,  between 
executed  contracts  and  those  which  are  only  executory. 
Where  the  consideration  is  still  executory,  the  contract  will 
be  declared  void,  even  against  a  party  who  entered  into  it  in 
ignorance  of  the  mental  condition  of  the  other  party.6  On 
the  other  hand,  where  the  contract  has  been  executed  and 
the  consideration  paid  and  enjoyed,  as  in  the  case  of  goods 
sold  to,  and  consumed  by,  a  lunatic  before  inquisition  found, 
no  relief  will  generally  be  granted  against  an  innocent  party, 
although  fraud  on  his  part  or  knowledge  of  the  lunatic's 
condition  would  make  it  otherwise.7     So,  a  lunatic  is  liable 

lAllia  v.  Billings,  6  Mete.  415  (1843) ;  Wait  v.  Maxwell,  5  Pick.  217 ;  Eaton  v. 
Eaton,  8  Vroom  108  (1874),  where  a  deed  was  voidable  for  fraud  in  reading  it 
falsely  to  an  aged  and  infirm  man.  So,  the  ratification  of  a  deed  may  be 
inferred  from  subsequent  receipt  of  the  consideration,  which  had  been  se- 
cured by  notes,  Arnold  v.  Richmond  Iron  Works,  1  Gray  434  (1854). 

2  Jackson  v.  Gumaer,  2  Cow.  552  (1824);  Hovey  v.  Hobson,  53  Me.  451 
(1866);  Nichol  v.  Thomas,  53  Ind.  42  (1876) ;  Fitzhugh  v.  Wilcox,  12  Barb. 
235  (1851 ).  So  held,  also,  as  to  a  waiver  of  notice  of  protest  after  inquisition 
found,  Wadsworth  v.  Sherman,  14  Barb.  169  (1851);  Wadsworth  v.  Sharp- 
steen,  8  N.  Y.  388  (1853).  In  Wisconsin  a  mortgage  executed  by  a  lunatic 
after  inquisition  found  was  declared  to  be  "voidable  if  not  void,"  Mohr  v. 
Tulip,  40  Wis.  66  (1876).  But  goods  sold  and  delivered  to  a  lunatic  pur- 
chaser two  days  after  inquisition  found  form  a  good  ground  of  action,  in, 
the  absence  of  fraud  and  of  knowledge  of  the  lunacy  and  of  the  inquisi- 
tion on  the  part  of  the  seller,  Beals  v.  See,  10  Penna.  St.  56  (1848). 

31  Daniel  219;  1  Parsons  151. 

4 Lancaster  Co.  Bank  v.  Moore,  78  Penna.  St.  407  (1875).  So,  too,  of  a 
deed,  Yauger  v.  Skinner,  1  McCarter  389  (1862). 

5Jn  re  Burr,  2  Barb.  Oh.  208  (1847). 

6Byles  64;  Sentance  v.  Poole,  3  C.  &  P.  1  (1827);  Baxter  v.  Lord  Ports- 
mouth, 2  lb.  178;  S.  G,  5  B.  &  O  170;  S.  G,  8  D.  &  Ry.  614.  In  the  former 
case,  Sentance  v.  Poole,  the  note  was  in  an  unusual  form,  payable  "  to  your 
order." 

'Sergeson  v.  Sealey,  2  Atk.  412  (1742)  •  Beals  v.  See,  10  Penna.  St.  56  (1848) ; 
Matthiessen  v.  McMahon,  9  Vroom  536  (1876);  Young  ".  Stevens,  48  N.  H. 
133(1868);  Wilder  v.  Weakley,  34  Ind.  1S1  (1870);  Ballard  v.   McKenna.  4 


DEFENSE.  379 

on  his  executed  contract  for  necessaries,  but  only  for  their 
actual  value.1  And  his  executor  will  be  liable  for  such 
necessaries  sold  to  him  before  office  found.2  And  even  after 
office  found  it  has  been  held  that  a  lunatic  is  liable  for  neces- 
sary medical  services  rendered  to  his  wife.3 

§  257.  Defense — Admissible  when. — It  was  formerly  held 
that  a  person  could  not  be  allowed  to  "stultify  himself"  by 
setting  up  his  lunacy  in  defense  against  a  contract  made  by 
him.4     The  absurdity  of  this  rule  is  apparent,  and  it  may 

Rich.  Eq.  358  (1852) ;  Sims  v.  McLure,  8  Rich.  Eq.  286  (1856) ;  Dodds  v.  Wil- 
son, 1  Treadw.  So.  Car.  448  (1813) ;  Scanlan  v.  Cobb,  85  111.  296  (1877).  And 
a  court  of  equity  will  not  interfere  in  such  a  case  in  a  lunatic's  behalf, 
Loomis  v.  Spencer.  2  Paige  153  (1830) ;  Niel  v.  Morley,  9  Ves.  477  (1804) ;  or 
to  set  aside  a  contract  for  purchase  of  land  which  has  hern  executed  by 
payment  on  the  lunatic's  part,  Beavan  v.  McDonnell.  9  Exch.  309  (1854). 
Nor  will  equity  set  aside  a  deed  made  by  a  lunatic  in  consideration  of  a  pre- 
vious agreement  for  farm  labor,  under  which  the  grantee  had  labored  for 
the  grantor  sixteen  years,  Canfield  v.  Fairbanks,  63  Barb.  461  (1872).  Nor 
an  injunction  bond,  made  by  a  lunatic  to  an  obligee  ignorant  of  that  fact, 
Behrens  v.  McKenzie,  23  Iowa  333  (1867),  Dillon,  J.,  comparing  such  bond 
rather  to  an  executed  than  an  executory  contract;  nor  a  lunatic's  bond  given 
for  a  loan  made  by  an  innocent  party  and  not  repaid,  Mutual  Life  Ins.  v.. 
Hunt,  79  N.  Y.  544  (1880);  Campbell* v.  Hooper,  3  Sm.  &  Giff.  153  (1855). 
So,  as  to  loans  and  services  in  general,  In  re  Beckwith,  3  Hun  443  (1875). 
So,  a  sale  of  goods  by  a  lunatic,  in  exchange  for  land  afterwards  lost  by  him 
on  an  execution  sale,  will  not  he  rescinded  by  the  court,  Hopson  v.  Boyd, 
6  B.  Mon.  296  (1845) ;  and  see  Carr  v.  Holliday,  1  Dev.  &  B.  Eq.  344  (1836). 
So,  premiums  paid  by  a  lunatic  for  an  annuity  enjoyed  by  him  during  his 
life,  the  vendor  being  chargeable  neither  with  fraud  nor  knowledge,  cannot 
be  recovered  by  his  executor.  Molton  v.  Camroux,  4  Exch.  19  (1849).  In 
like  manner,  where  a  lunatic  has  received  the  benefit  of  a  sale  made  by  his 
guardian  and  had  sufficient  capacity  to  transact  business,  he  cannot  have 
the  sale  set  aside,  Searle  v.  Galbraith,  73  111.  269  (1874).  But  goods  sold  to 
a  lunatic  in  good  faith,  but  negligently  and  without  any  benefit  to  him,  will 
not  support  a  recovery,  Lincoln  v.  Buckmaster,  32  Vt.  652  (1860). 

'1  Parsons  149;  1  Story  Eq  §  228;  Read  v.  Legard,  6  Exch.  636  (1861)  ; 
Barnes  v.  Hathaway,  66  Barb.  456  (1873) ;  Van  Hum  v.  Hum,  10  Vroom  207 
(1877);  Hallett  v.  bakes,  1  Cush.  296  (1818);  Kendall  v.  May,  ID  Allen  59 
(1865);  Skidmoreu  Romaine,  2  Bradf.  122  (1852);  Williams  v.  Wentworth, 
5  Beav.  325  (1842) ;  Sawyer  v.  Lufkin,  56  Me.  308  (1868).  So,  a  note  given 
for  a  reaping  machine  hy  an  insane  person  lias  been  held  binding  upon  him 
on  the  same  ground,  McCormick  v.  Littler,  85  111.  62  (1877).  So,  a  contract 
for  the  hire  of  carriages  and  harness,  Baxter  v.  Lord  Portsmouth,  2  C.  &  P. 
178  (1826) ;  S.  C,  5  B.  &  C.  170. 

?La  Rue  v.  Gilkyson,  4  Penna.  St.  375(1846);  Richardson  v.  Strong,  13 
[red.  106  (1851);  Tally  v.  Tally,  2  Dev.  &  B.  Eq.  387  1839).  And  an  indorse- 
ment by  a  drunkard  pending  proceedings  tor  the  appointment  of  a  guardian 
is  good  so  far  as  it  is  in  payment  for  necessaries,  McCrillis  v.  Bartlett,  8  X. 
H.  569  (1837).  So,  too,  of  an  accommodation  indorsement  for  a  lunatic  of 
a  note  made  by  his  unauthorized  agent,  Surles  v.  Pipkin,  69  N.  C.  513  (1873). 

8Pearl  v.  McDowell,  3  J.  J.  Marsh.  658  (1830). 

*Byles63;  Chitty25;  1  Daniel  215;  1  Parsons  383;  Brown  v.  Joddrell,  1 
M.  &  M.  105  (1827);  S.  C,  3  C.  &  P.  30;  Levy  v.  Baker,  1  M.  &  M.  106; 


3  SO  CAPACITY IDIOTS    AND    LUNATICS. 

now  be  regarded  as  abandoned.1  The  defense  of  lunacy  is, 
however,  still  held  to  be  unavailable  in  England,  unless  the 
fact  was  known  to  the  other  contracting  party  at  the  time.2 
And  in  the  United  States  also  it  is  held  that,  in  the  absence 
of  such  knowledge  and  of  fraud,  the  contract  cannot  be 
avoided  without  full  re-instatement  of  the  other  party  in  his 
former  position.3 

If  the  contract  has  been  obtained  from  the  lunatic  through 
fraud,  this  will  be  a  good  defense  even  against  a  bona  fide 
holder  for  value.4     So,  an  accommodation  indorsement  will 

Dane  v.  Kirkwall.  8  C.  &  P.  679  (1838) ;  Beverley's  Case,  4  Coke  126;  Stroud 
v.  Marshall,  Cro.  Eliz.  398.  This  rule  is  well  declared  by  Fonblanque  to  be 
"in  defiance  of  natural  justice  and  the  universal  practice  of  all  the  civil- 
ized nations  in  the  world,"  1  Fonbl.  Eq.  46.  The  case  of  Brown  v.  Joddrell, 
supra,  has  been  overruled  in  Massachusetts,  Seaver  v.  Phelps,  11  Pick.  304 
(1831).  In  this  case  Lord  Tenterden  had  laid  down  the  rule  as  follows :  "  I 
think  this  defense  cannot  be  allowed  and  that  no  person  can  be  suffered  to 
stultify  himself  and  to  set  up  his  own  lunacy  as  a  defense.  If  indeed  it  can 
be  shown  that  the  defendant  has  been  imposed  upon  by  the  plaintiff  in  con- 
sequence of  his  mental  imbecility,  it  might  be  otherwise,  and  such  a  de- 
fense might  be  admitted."  In  Webster  v.  Woodford,  3  Day  101,  it  is  said 
that,  "  in  the  time  of  Edward  I.  non  compos  mentis  was  allowed  to  be  a  suffi- 
cient plea  to.  avoid  a  man's  own  bond.  It  was  not  until  the  reign  of  Edward 
III.  that  any  scruple  was  entertained  respecting  the  power  of  a  person  who 
had  been  non  compos  mentis  to  avoid  his  act,  and  it  was  as  late  as  the 
reign  of  Henry  VI.  before  there  was  any  judicial  determination  that  a  per- 
son who  had  been  non  compos  mentis  could  not  avoid  a  deed  given  by  him 
during  his  insanity.  *  *  *  The  ancient  common  law  was  that  a  man 
might  allege  his  own  incapacity  to  avoid  his  deed,  and  this  remained  law 
(hiring  a  long  period  of  time  and  has  never  been  altered  by  any  legal  act, 
I  nit  the  contrary  doctrine  depends  upon  decisions  of  courts  in  direct  oppo- 
sition to  the  common  law." 

^vles  63;  1  Daniel  215;  1  Edwards  g  25 ;  1  Parsons  149;  Gore  v.  Gibson, 
13  M.  &  W.  623  (1845)-;  Alcock  v.  Alcock,  3  Man.  &  G.  268  (1841) ;  Rice  v. 
Peet,  15  Johns.  503  (1819).;  Mitchell  v.  Kingman,  5  Pick.  431  (1827);  Fitz- 
lmgh  v.  Wilcox,  12  Barb.  237  (1851) ;  Webster  v.  Woodford,  3  Day  90  (1808) ; 
Taylor  v.  Dudley,  5  Dana  308  (1837) ;  Lang  v.  Whidden,  2  N.  H.  435  (1822). 
And  the  insanity  of  one  who  has  signed  a  note  as  surety  may  be  set  up  in 
defense  against  a  holder  who  had  no  knowledge  of  it,  Van  Patton  v.  Beals, 
46  Iowa  62  (1877). 

2Bydes  64;  Molton  v.  Camroux,  4  Exch.  19,  affirming  2  lb.  487;  Beavan  v. 
McDonnell,  9  lb.  309;  Elliot  v.  Ince,  7  DeG.  M.  &  G.  475.  See,  too,  1  Par- 
sons 149,  where  this  is  said  to  be  "  possibly  "  the  rule.  And  see  Shou  Iters  v. 
Allen,  31  Mich.  529  (1883) ;  Moore  v.  Hershey,  90  Penna.  St.  196  (1879).  And 
this  seems  to  be  the  rule  by  statute  in  Louisiana,  Succession  of  Smith,  12  La. 
An.  24(1857). 

3Carr  v.  Holliday,  1  Dev.  &  B.  Eq.  344  (1836)  ;  Fitzgerald  v.  Reed,  9  Sm.  & 
M.  94  (1847) ;  Yauger  v.  Skinner,  1  McCarter  389  (1862). 

4Chitty  24;  1  Daniel  216;  Sentence  v.  Poole,  3  C.  &  P.  1  (1827) ;  Moore  v. 
Hershey,  90  Penna.  St.  196  (1S79).  In  the  words  of  Paxson,  J.,  in  Moore  v. 
Hershey,  supra,  p.  201,  "  If  such  paper  can  be  protected  in  the  hands  of  a. 
holder  who  has  paid  value,  however  trifling,  this  helpless  class  would  have 


WHAT    AMOUNTS    TO    INSANITY.  381 

not  render  a  lunatic  liable  even  to  a  bona  fide  holder  for 
value.1  This  is  true,  too,  of  a  note  pledged  by  one  who  is 
non  compos  mentis  ;2  or  indorsed  for  much  less  than  its  actual 
value.3 

It  seems,  moreover,  that  the  insanity  of  an  indorser  may 
be  set  up  by  the  maker  of  a  note  in  defense  to  a  suit  on  it 
by  the  indorsee,*  although  this  seems  to  be  a  departure  from 
the  common  rule  as  to  such  defenses.  And  it  seems  reason- 
able, as  in  other  cases  of  one  party's  incapacity,  that  this 
should  in  no  way  affect  the  holder's  remedy  against  other 
parties.6 

§  258.  What  Amounts  to  Insanity. — It  is  not  necessary  to 
a  complete  defense  that  the  party  alleged  to  be  incapable 
should  be  wholly  or  even  partially  deranged.  Any  imbecil- 
ity is  a  sufficient  defense,  which  renders  him  incapable  of 
fully  understanding  and  intending  the  contract  in  question, 
especially  if  such  imbecility  on  his  part  be  accompanied 
with  fraud  on  the  other  side.6  Mere  weakness  of  intellect, 
however,  without  fraud,  is  no  defense.7  But  the  import- 
little  protection.  A  principle  that  renders  such  results  possible  must  be 
essentially  and  radically  wrong.  We  believe  that  none  such  exists.  On  the 
contrary,  the  true  rule  applicable  to  such  cases  is  that  while  the  purchaser 
of  a  promissory  note  is  not  bound  to  inquire  into  the  consideration,  he  is 
affected  by  the  status  of  the  maker— as  in  the  case  of  a  married  woman  or 
a  minor.  In  neither  of  these  cases  can  he  recover  against  the  maker.  In 
the  case  of  a  lunatic,  however,  he  may  recover,  provided  he  had  no  knowl- 
edge of  the  lunacy  and  the  note  was  obtained  without  fraud  and  upon  a 
proper  consideration." 

1Wirebach  v.  First  Nat.  Bank,  97  Penna.  St.  543  (1881).  So,  where  the 
lunatic  has  signed  a  note  as  surety,  Van  Patton  v.  Beals,  46  Iowa  62  (1877). 

'Seaver  v.  Phelps,  11  Pick.  304  (1831). 

3Jeneson  v.  Jeneson,  66  111.  259  (1872). 

4Burke  v.  Allen.  29  N.  H.  106  (1854);  Peaslee  v.  Bobbins,  3  Mete.  164 
(1841).  As  to  the  invalid  character  of  such  a  transfer,  see  also,  Hannahs  v. 
Sheldon,  20  Mich.  278  (1870).  But  it  has  been  held  that  the  maker  cannot 
set  up  in  defense  at  suit  of  an  indorsee  that  the  indorsement  was  procured 
by  undue  influence  where  the  indorser  has  not  disaffirmed  it,  Carrier  v. 
Sears,  4  Allen  336  (1862). 

51  Parsons  150. 

'Johnson  v.  Chadwell,  8  Humph.  145  (1847). 

TChitty  25;  1  Daniel  217;  1  Edwards  \  24;  2  Bl.  Com.  292;  Baxter  v.  Lord 
Portsmouth,  8  D.  &  Ry.  614;  S.  C,  5  B.  &  C.  170;  S.  C,  2  C.  &  P.  178;  Faul- 
der  v.  Silk,  3  Campb.  126;  Yates  v.  Boen,  2  Stra.  1104;  Lewis  v.  Pead,  1  Ves. 
Jr.  19  (1789) ;  Farnam  v.  Brooks,  9  Pick.  212  (1830) ;  Graham  v.  Castor,  55 
Ind.  559  (1877);  Marmon  v.  Marmon,  47  Iowa  121  (1877);  Maddox  v.  Sim- 


382  CAPACITY IDIOTS    AND    LUNATICS. 

ance  of  mental  weakness  as  evidence  of  fraud  is  not  to  be 
overlooked.1 

§  259.  Pleading — Evidence. — It  was  formerly  held,  in 
England,  that  lunacy  as  a  defense  must  be  specially  pleaded.2 
And  the  presumption  of  law  is  in  favor  of  sanity.3  This 
throws  the  burden  of  proof  upon  the  party  making  the  alle- 
gation of  insanity,  but  the  presumption  of  sanity  may  be 
rebutted  and  the  burden  of  proof  shifted  by  proof  of  general 
derangement.4 

Periodical  intervals  of  recovery  will,  however,  destroy  any 
such  presumption  of  insanity.5 

§  260.  Inquisition — How  far  Conclusive. — Even  an  inquisi- 
tion and  finding  of  insanity  will  not  be  conclusive  evidence 

mons,  31  Ga.  512  (1860).  Parker,  C.  J.,  in  Farnam  v.  Brooks,  supra,  p.  20, 
says :  ;1  We  understand  the  law  to  be  that  no  degree  of  physical  or  mental 
imbecility  which  leaves  the  party  legal  competency  to  act  is  of  itself  suffi- 
cient to  avoid  a  contract  or  settlement  with  him,  but  if  advantage  is  taken 
of  his  weakness  to  draw  from  him  a  contract  or  settlement  which  is  unfav- 
orable by  misrepresentation,  imposition  or  undue  influence,  such  contract 
or  settlement  cannot  be  upheld  in  a  court  of  equity." 

'Harris  v.  Wamsley,  41  Iowa  671  (1875) ;  Hoagland  v.  Titus,  1  C.  E.  Gr.  44 
(1863);  McPadden  v.  Vincent,  21  Tex.  47  (1858) ;  especially  when  coupled 
wi*.h  inadequacy  of  consideration,  Cadwallader  v.  West,  48  Mo.  483  (1871). 
So,  too,  the  weakness  of  old  age,  James  v.  Langdon,  7  B.  Mon.  193  (1846)  ; 
Wilson  v.  Oldham,  12  lb.  55  (1851) ;  Coleman  v.  Frazer,  3  Bush  300  (1867)  ; 
Eaton  v.  Eaton,  8  Vroom  108  (1874).  So,  the  fact  that  the  person  defrauded 
was  illiterate  and  unable  to  read  the  paper  signed  by  him,  Anderson  v.  Wal- 
ter, 34  Mich.  113  (1876) ;  First  Nat.  Bank  v.  Lierman,  5  Neb.  247  (1876). 

2Byles  64;  1  Daniel  215;  1  Edwards  \  26;  Harrison  v.  Richardson,  1  M.  & 
Rob.  504  (1835).  But  see,  contra,  Mitchell  v.  Kingman,  5  Pick.  431  (1827). 
Such  plea  should,  however,  set  up  that  the  defendant  was  non  compos  mentis 
at  the  time  when  the  contract  was  made,  Taylor  v.  Dudley,  5  Dana  309 
(1837). 

31  Daniel  214;  1  Edwards  \  26 ;  1  Parsons  150;  Jackson  v.  King,  4  Cow. 
207  (1825).  But  the  presumption  may  be  rebutted  by  common  report  to  the 
contrary,  Rogers  v.  Walker,  6  Penna.  St.  371  (1847). 

*  Jackson  v.  Van  Dusen,  5  Johns.  144  (1809) ;  Aurentz  v.  Anderson,  3  Pittsb. 
310  (1S71).  When,  however,  the  presumption  of  sanity  is  once  rebutted  by 
common  report,  &c,  the  burden  of  proving  a  lucid  interval  falls  on  the  per- 
son who  seeks  to  hold  the  alleged  lunatic,  Rogers  v.  Walker,  6  Penna.  St. 
371  (1847).  In  such  case  actions  touching  the  same  subject-matter  at  times 
when  he  was  admitted  to  be  sane  are  admissible  as  evidences  of  his  sanity; 
e.  g.  his  subsequently  taking  indemnity  against  the  note  given  by  him  and 
in  controversy,  Grant  v.  Thompson,  4  Conn.  203  (1822). 

5 Carpenter  v.  Carpenter,  8  Bush  283  (1871) ;  Staples  v.  Wellington,  58  Me. 
453  (1S70) ;  People  v.  Francis,  38  Cal.  183  (1869).  "  The  question  is  whether 
such  transaction  has  been  affected  by  it,"  Beasley,  C.  J.,  in  Lozear  v.  Shields, 
8  C.  E.  Gr.  509  (1872). 


INQUISITION.  383 

against  any  one  not  a  party  to  it.1  Nor  will  the  finding  of 
a  probate  court  of  equity,  afterward  affirmed  by  inquisition 
and  verdict,  be  co-nclusive  against  the  validity  of  a  deed  exe- 
cuted by  the  lunatic  in  the  interval.2  But  an  inquisition  and 
finding  will  amount  to  sufficient  proof  until  overcome  by 
other  evidence;3  and  will  be  admissible  as  evidence  even 
against  an  earlier  contract.4  And  proof  of  iusanity  of  the 
maker  of  a  note  both  before  and  after  it  was  made  is  a  suffi- 
cient defense  to  the  note  on  his  part.5 

The  subsequent  insanity  of  the  maker  of  a  note  will  not, 
however,  be  a  defense,  even  though  the  payee  and  plaintiff 
has  been  appointed  guardian  for  him.6 

^ergeson  v.  Sealey,  2  Atk.  412  (1742) ;  Den  v.  Clark,  5  Halst.  217  (1828) ; 
Hurt  v.  Deamer,  6  Wend.  497  (1831);  Osterhout  v.  Shoemaker,  3  Hill  516 
(1842) ;  Hoyt  v.  Adee,  3  Lans.  173  (1870).  But  in  White  v.  Palmer,  4  Mass. 
150,  Chief  Justice  Parsons  says:  "There  are  some  strong  grounds  on  which 
it  may  be  inferred  that  a  letter  of  guardianship  of  any  person  adjudged  to 
to  be  non  compos  so  long  as  it  is  unrevoked  or  not  annulled  is  conclusive 
evidence  of  his  insanity,  but  on  this  point  we  give  no  opinion."  And  see, 
to  same  effect.  Wadsworth  v.  Sharpsteen,  8  N.  Y.  3S8  (1853) ;  Leonard  v. 
Leonard,  14  Pick.  283  (1833).  And  so,  too,  as  to  contracts  made  afterward, 
Tozer  v.  Saturlee,  3  Grant  Cas.  162  (Pa.  1855).  After  a  man's  reason  has 
been  restored,  a  prior  decree  of  insanity  and  letters  of  guardianship  unre- 
voked are  not  conclusive  evidence  against  the  validity  of  a  will  made  three 
vears  afterward,  Stone  v.  Damon,  12  Mass.  488  (1815) ;  Breed  v.  Pratt,  18 
Pick.  115(1836). 

2Gibson  v.  Soper,  6  Gray  279  (1856). 

sSergeson  v.  Sealey,  2  Atk.  412;  Hicks  v.  Marshall,  8  Hun  327  (1876); 
Ho.yt  v.  Adee.  3  Lans.  173;  White  v.  Palmer,  4  Mass.  147  (1808) ;  Goodell  v. 
Harrington,  3  T.  &  C.  345  (1874) ;  Rogers  v.  Walker.  6  Penna.  St.  371  (1847) ; 
Tozer  v.  Saturlee,  3  Grant  Cas.  162  (Pa.  1855) ;  McGinnis  v.  Commonwealth, 
74  Penna.  St.  245  (1873).  And  may  be  traversed,  Sergeson  v.  Sealey,  supra  ; 
or  met  by  other  evidence  to  the  contrary  without  formal  traverse,  Den  v. 
Clark,  5  Halst.  217  (1828). 

^  1 1  Edwards  §  27 ;  Hicks  v.  Marshall,  8  Hun  327  (1876).  And,  a  fortiori,  a 
finding  that  the  obligor  of  a  bond  was  a  lunatic  before  its  execution,  Faulder 
v.  Silk,  3  Campb.  126  (1811). 

5Ellars  v.  Mossbarger,  9  Bradw.  122  (1881). 

•Smith  v.  Davis,  45  N.  H.  566  (1864). 


384  CAPACITY — DRUNKARDS. 


IV.    DRUNKARDS. 

261.  Drunkenness — A  Valid  Defense. 

262.  Commercial  Paper. 

263.  Defense — When  Admissible. 

264.  Action — Pleading — Evidence. 

§  261.  Drunkenness — A  Valid  Defense. — The  mental  con- 
dition of  a  drunkard,  so  far  as  it  renders  him  imbecile  or 
insane,  seems  to  entitle  him  to  the  same  protection  and  de- 
fenses that  belong  to  an  idiot  or  lunatic.  Formerly,  how- 
ever, drunkenness  was  held  to  be  no  defense  without  fraud.1 
And  it  is  still  the  rule  of  law  that  partial  drunkenness,  not 
involving  actual  mental  incapacity,  is  no  defense,2  unless 
there  be  fraud  in  connection  with  it.3 

Drunkenness,  however,  like  weakness  of  intellect,  is  im- 
portant evidence  in  ascertaining  whether  fraud  has  been 
practiced.4  And  even  partial  drunkenness  will  be  re- 
garded as  strong  evidence  of  fraud,  if  induced  by  the  other 
party  to  the  contract.5  So,  if  a  note  be  made  by  a  person 
enfeebled  by  disease  and  drinking,  this  will  in  some  cases, 
of  itself,  raise  a  presumption  of  fraud.6  If,  on  the  other 
hand,  a  person  has  made  himself  drunk  for  the  purpose* of 

'Byles  64;  1  Parsons  151;  Johnson  v.  Medlicotte,  3  P.  Wms.  130  (1734), 
Cooke  v.  Clavworth,  18  Ves.  12  (1811).  See,  too,  Wilson  v.  Nisbet,  Morison 
1509  (Scotch  Sessions  1736). 

21  Daniel  219;  1  Edward*  §  28 ;  1  Parsons  151;  Johns  v.  Fritchey,  39 
Md.  258  (1873);  Bates  v.  Ball,  72  111.  108  (1874);  Miller  v.  Finley,  26  Mich. 
249  (1872) ;  Cavender  v.  Waddingham,  5  Mo.  App.  457  (1878).  In  this  case, 
p.  465,  Bakewell,  J.,  lays  down  the  rule  as  follows  :  "  Mere  excitement  from 
the  use  of  intoxicating  liquors  is  not  such  drunkenness  as  will  enable  a 
party  to  avoid  his  contracts.  Such  excitement  and  drunkenness  must  be 
excessive  and  absolute,  so  as  to  suspend  the  reason  and  create  impotence 
of  mind  at  the  time  of  entering  into  the  contract."  It  must  be  "so  great  as 
to  produce  an  absolute  privation  of  understanding  for  the  time  similar  to 
cases  of  idiocy  or  insanity,"  Blackford,  J.,  in  Harbison  v.  Lemon,  3  Blackf. 
51  (1832). 

sChitty  104;  Burroughs  v.  Richman,  1  Green  233  (N.  J.  1832). 

4  Prentice  v.  Achorn,  2  Paige  30  (1830);  French  v.  Hickox,  8  Ohio  214 
(1837). 

5 Samuel  v.  Marshall,  3  Leigh  567  (1832) ;  Curtis  v.  Hall,  1  South.  361 
(1817). 

6Holland  v.  Barnes,  53  Ala.  83  (1875). 


COMMERCIAL    PAPER.  385 

giving  his  contract  such  an  appearance  or  raising  such  pre- 
sumption, he  will  be  estopped  from  setting  up  the  defense.1 

§  262.  Commercial  Paper. — Total  drunkenness  is,  in  gen- 
eral, a  perfect  defense  against  the  drunkard's  bill  or  note.2 
And  where  a  contract  for  work  has  been  made  by  a  man 
while  drunk,  he  may  recover  the  actual  value  of  the  work 
done  without  the  production  of  the  contract.3  The  validity 
of  such  defense  to  a  bill  of  exchange  is  recognized  in  Eng- 
land, where  the  bill  has  been  obtained  by  fraud,4  both  as 
against  the  party  originally  receiving  it,5  and  against  all 
holders  with  notice.6  On  the  other  hand,  drunkenness  is  no 
defense  against  a  bona  fide  holder  for  value  before  maturity.7 
And  it  has  been  held  that  a  contract  by  one  who  is  drunk 
may  be  avoided,  although  the  other  party  be  not  guilty  of 
fraud  or  fault.8  It  has  also  been  held  that  a  drunkard's  note 
is  void  and  cannot  be  ratified.9  The  better  opinion  is,  how- 
ever, that  it  is  only  voidable,10  and  can  be  ratified.11 

In  many  States  the  contracts  of  habitual  drunkards  are 

'1  Daniel  220;  1  Parsons  151. 

2Byles  64;  1  Daniel  219;  1  Edwards  \  28;  Gore  v.  Gibson,  13  M.  &  W.  623 
0845) ;  Bliss  v.  Railroad,  24  Vt.  424  (1852)  ;  Berkley  v.  Canon,  4  Rich.  L.  136 
(1850) ;  Harbison  v.  Lemon,  3  Blackf.  51  (1832) ;  Wigglesworth  v.  Steers,  1 
H.  &  Munf.  70  (1806);  Phelan  v.  Gardner,  43  Cal.  306  (1872);  Reinskopf  v. 
Rogge,  37  Ind.  207  (1871).  So,  to  a  bond,  Morris  v.  Clay,  8  Jones  L.  216 
(1860) ;  or  deed,  French  v.  Hickox,  8  Ohio  214  (1837).  So,  the  drunkenness 
of  one  joint  obligor  of  a  bond,  Jenners  v.  Howard,  6  Blackf.  240  (1842). 
And  a  contract  executed  "after  reaching  a  stage  of  deliriimi  tremens  in  1850 
and  being  crazy,  silly  and  foolish  when  drunk  then,  and  continuing  con- 
stantly in  this  habit  for  four  years  longer,"  was  set  aside  as  the  act  of  one  non 
compos  mentis,  Menkins  v.  Lightner,  18  111.  282  (1857).  On  the  other  hand, 
a  broken-down  inebriate  with  occasional  fits  of  insanity  is  not  to  be  pre- 
sumed insane,  s©  as  to  relieve  the  defense  of  the  burden  of  proof,  Gardner 
v.  Gardner,  22  Wend.  526  (1839). 

3Fenton  v.  Halloway,  1  Stark.  126  (1815). 

*Pitt  v.  Smith,  3  Campb.  33. 

5Chitty  24;  Pitt  v.  Smith,  supra;  Gregory  v.  Frazer,  3  Campb.  454;  Fen- 
ton  v.  Halloway,  supra;  Yates  v.  Boen,  2  Stra.  1104;  Bui.  N.  P.  172. 

•Molton  v.  Camroux,  2  Exch.  487,  affirmed  4  lb.  19. 

7Chitty  24 ;  1  Daniel  219;  Northam  v.  Latouche,  4  C.  &  P.  145;  Johnson 
v.  Medlicotte,  3  P.  Wms.  130;  McSparran  v.  Neeley,91  Penna.  St.  17  (1879);. 
State  Bank  v.  McCoy,  69  76.  204  (1871). 

"Barrett  v.  Buxton,  2  Aik.  167  (1826). 

•Berkley  v.  Canon,  4  Rich.  136  (1850). 

10Joest  v.  Williams,  42  Ind.  565  (1873) ;  McGuire  v.  Callahan,  19  lb.  128. 

"Mathews  v.  Baxter,  L.  R.  8  Exch.  132. 

Z 


386  CAPACITY DRUNKARDS. 

made  void  by  statute.1  And  it  has  been  held,  in  Pennsyl- 
vania, that,  after  office  found,  a  habitual  drunkard  cannot 
bar  the  Statute  of  Limitations  on  a  former  note  by  a  new 
promise  of  payment.2 

§  263.  Defense — When  Admissible. — Drunkenness  is,  in 
general,  not  a  valid  defense,  unless  the  consideration  received 
can  be  returned.3  In  all  such  cases,  a  distinction  is  to  be 
made  between  express  contracts  and  those  which  the  law 
implies.4  In  the  latter  case,  e.  g.  a  contract  for  necessaries 
purchased  and  consumed  by  the  drunkard,  the  contract  may 
be  binding  on  the  drunkard,  though  made  by  him  after  the 
appointment  of  a  guardian.5 

§  264.  Action — Pleading- — Evidence. — Where  a  note  is 
made  by  a  drunkard  before  the  appointment  of  a  guardian, 
the  action  on  it  must  be  brought  against  him  and  not  against 
the  guardian.6  The  defense  of  drunkenness  should  be  spe- 
cially pleaded,7  although  it  has  been  held  to  be  admissible 

'Thus,  an  indorsement  made  pending  a  proceeding  for  the  appointment 
of  a  guardian  for  such  drunkard  transfers  no  title,  McCrellis  v.  Bartlett,  8 
N.  H.  569  (1837).  Much  more  after  inquisition  found,  L'Amoureux  v. 
Crosby,  2  Paige  427  (1831),  under  New  York  act  of  1821 ;  Clark  v.  Caldwell,  P 
Watts  139  (1837),  under  Pennasylvania  act  of  1819.  So,  a  bond  executed  after 
inquisition  found,  Imhoff  v.  Whitmer,  31  Penna.  St.  243  (1858).  So,  the 
waiver  of  notice  of  protest  by  a  drunkard  after  inquisition  found,  Wads- 
worth  v.  Sharpsteen,  8  N.  Y.  388  (1853) ;  Wadsworth  v.  Sherman,  14  Barb. 
169  (1851) ;  or  a  will  under  like  circumstances,  In  re  Patterson,  4  How.  Pr. 
34  (1849). 

2Hannum's  Appeal,  9  Penna.  St.  471  (1848). 

sJoest  v.  Williams,  42  Ind.  565  (1873);  McGuire  v.  Callahan.  19  lb.  128. 
But  in  Berkley  v.  Canon,  4  Rich.  136  (1850),  a  note,  given  while  very 
drunk,  for  the  purchase  of  a  horse,  was  held  void,  leaving  undecided  the 
question  of  a  right  to  recover  for  the  value  of  the  horse. 

4"  Where  the  right  of  action  is  grounded  upon  a  specific  distinct  contract 
requiring  the  assent  of  both  parties,  and  one  of  them  is  incapable  of  assent- 
ing, in  such  a  case  there  can  be  no  binding  contract;  but  in  many  cases  the 
law  does  not  require  an  actual  agreement  between  the  parties  but  implies 
a  contract  from  the  circumstances — in  fact,  the  law  makes  the  contract  for 
the  parties.  Thus,  *  *  *  a  tradesman  who  supplies  a  drunken  man 
with  necessaries  may  recover  the  price  of  them,  if  the  party  keeps  them 
when  he  becomes  sober,  although  a  count  for  goods  bargained  and  sold 
would  fail,"  Pollock,  C.  B.,  in  Gore  v.  Gibson,  13  M.  &  W.  625. 

5Darby  v.  Cabanne,  1  Mo.  App.  126  (1876).  But  the  burden  of  proving 
that  a  note  given  by  a  drunkard  was  for  necessaries  rests  on  the  pa»-*y  offer- 
ing it,  Devin  v.  Scott,  34  Ind.  67  (1870). 

6  Coombs  v.  Janvier,  2  Vroom  240  (1865). 

'Byles  64;  1  Daniel  220;  Gore  v.  Gibson,  13  M.  &  W.  623. 


ACTION.  387 

under  the  general  issue.1  The  fact  of  drunkenness  and  the 
degree  of  incapacity  caused  by  it  are  for  the  jury  to  deter- 
mine.2 The  burden  of  proof  lies  on  the  party  alleging  it  as 
a  defense  ;3  but  if  insanity  for  such  cause  be  once  shown,  the 
burden  is  shifted  to  the  plaintiff  to  establish  sanity  at  the 
time  of  the  contract  in  question.*  The  finding  of  an  inqui- 
sition, as  in  the  case  of  lunacy,  is  presumptive  evidence  to 
support  the  defense.5  And  it  seems  that  a  note,  inadmissible 
as  evidence  of  debt  for  want  of  a  stamp,  is  admissible  as  evi- 
dence of  the  maker's  condition  at  the  time  in  disproof  of  an 
allegation  of  drunkenness  and  fraud.6  As  with  other  de- 
fenses, where  the  fact  of  drunkenness  is  once  established,  the 
burden  is  thrown  upon  the  holder  of  the  paper  to  show  him- 
self a  bona  fide  holder  for  value  before  maturity.7 

»Pitt  v.  Smith,  3  Campb.  33  (1811). 

2Cumniingsi>.  Henry,  10  Ind.  109  (1858). 

'Burroughs  v.  Richman,  1  Green  233  (N.  J.  1832). 

*Menkins  v.  Lightner,  18  111.  282  (1857).  But  evidence  that  the  maker  of 
the  note  was  a  broken-down  inebriate  with  occasional  fits  of  insanity  is  not 
enough  to  shift  the  burden  of  proof,  Gardner  v.  Gardner.  22  Wend.  526 
(1839). 

6McGinniss  v.  Commonwealth,  74  Penna.  St.  245  (1873).     But  in  Devin  v, 
Scott,  34  Ind.  67  (1870),  it  was  held  to  be  conclusive  evidence. 
"Gregory  v.  Fraser,  3  Campb.  454. 
'Hale  v,  Brown,  11  Ala.  87  (1847). 


388  CAPACITY INFANTS. 


V.    INFANTS. 

265.  Disability  of  Infants — Foreign  Statutes. 

266.  Common  Law. 

267.  Contracts  for  Benefit — Executed  and  Executory. 

268.  in  Trade. 

269.  for  Necessaries. 

270.  Commercial  Paper — Infant  Maker — Acceptor. 

271.  Infant  Indorser. 

272.  Defense  of  Infancy  Personal — Estoppel. 

273.  Ratification — What  Amounts  to. 

275.  Implied. 

276.  Requisites  of. 

277.  Disaffirmance — What  Amounts  to. 

278.  Action — Defense — Pleading. 

§  265.  Disability  of  Infants — Foreign  Statutes. — By  the 
law  merchant,  as  by  the  common  law  of  England,  infanta 
are  incapable  of  binding  themselves  by  legal  contract.  This 
incapacity  extends  at  common  law,  and  by  statute  in  most 
of  the  United  States,  to  all  persons  under  the  age  of  twenty- 
one  years.  The  minority  of  women  ends,  however,  by  the 
statutes  of  some  States,  at  the  age  of  eighteen  years.1  Such 
contracts  of  infants  as  were  formerly  voidable  at  common 
law  are  now  made  void  by  the  Infants'  Relief  Act,  passed  in 
England  in  1874.2  By  the  Code  Napoleon,  and  in  the 
countries  following  its  lead,  bills  of  exchange  drawn  by 
minors,  who  are  not  traders,  are  void  as  to  them,  although 
the  rights  of  other  parties  relative  to  one  another  are  saved.3 

'Arkansas  (1873  R.  S.  g  3034) ;  Ioiva  (1880  Rev.  Code  \  2237). 

237  and  38  Vict.  c.  62.  This  act  provides  as  follows:  \  1.  "All  contracts,, 
whether  by  specialty  or  by  simple  contract,  henceforth  entered  into  by  in- 
fants for  the  repayment  of  money  lent  or  to  be  lent,  or  for  goods  supplied  or 
to  be  supplied  (other  than  contracts  for  necessaries),  and  all  accounts  stated 
with  infants  shall  be  void;  provided,  always,  that  this  enactment  shall  not 
invalidate  any  contract  into  which  an  infant  may  by  any  existing  or  future 
statute  or  by  the  rules  of  common  law  or  equity  enter,  except  such  as  now 
by  law  are  voidable."  \  2.  "No  action  shall  be  brought  whereby  to  charge 
any  person  upon  any  promise  made  after  full  age  to  pay  any  debt  contracted 
during  infancy,  or  upon  any  ratification  made  after  full  age  of  any  promise 
or  contract  made  during  infancy,  whether  there  shall  or  shall  not  be  any 
new  consideration  for  such  promise  or  ratification  after  full  age." 

"France  (1807  Code  Napoleon  Art.  114);  Greece  (1835  Code  Com.  Art.  114) ; 
Hayti  (1826  Code  Com.  Art.  112)  ;  Italy  (1865  Code  Com.  Art.  200) ;  Monaco 
(1818  Code  Com.  Art.  104)  ;  Roumama  (1840  Code  Com.)  ;  Servia  (1860  Code 
Com.  Art.  79)  ;  San  Domingo  (1844  Code  Napoleon  Art.  114).  In  the  Servian 
Code  the  liability  of  an  infant  for'benefit  actually  received  is  reserved,, 
although  his  bill  of  exchange  is  declared  void. 


DISABILITY    AT    COMMON    LAW.  389 

By  the  German  Exchange  Law  an  infant's  power  to  make  a 
bill  or  note  is,  in  general,  co-extensive  with  his  power  to 
make  other  binding  contracts.  This  power  exists  for  the 
most  part  only  where  the  infant  contracts  as  a  merchant.1 
In  Venezuela  such  bills  are  mere  acknowledgments  of  debt 
and  not  subject  to  the  rules  of  the  lex  mercatoria,  unless  the 
infant  have  been  declared  competent  to  engage  in  trade.2 

§  266.  Disability  at  Common  Law. — The  rule  of  the  Eng- 
lish common  law  is  that  infants'  contracts  are,  in  general, 
not  absolutely  void,  but  only  voidable,  and  therefore  capable 
of  ratification.3  This  is  true  even  of  contracts  which  are  not 
for  necessaries.4  Thus,  an  exchange  of  horses  by  an  infant 
is  voidable,  and  he  may  recover  the  price  agreed  on.5  So, 
if  a  horse  purchased  by  him  is  retained  by  his  administrator, 
the  voidable  contract  is  ratified  and  the  infant's  estate  liable.6 
So,  a  seaman's  contract  is  voidable  only,  and  he  may  recover 
a  quantum  meruit?  The  following  contracts  by  an  infant 
have,  in  like  manner,  been  held  to  be  voidable  only  and 
capable  of  ratification  :  a  chattel  mortgage  ;8  an  undertaking 
for  a  stay  of  execution  ;9  a  marriage  contract;10  an  account 
stated;11  and  even  a  deed  reciting  a  valuable  consideration 
received.12 

§  267.   Contracts   Beneficial   or  Otherwise — Executory  or 

1Tlibl's  Wechselrecht  108.  In  some  cases,  however,  the  consent  of  the 
minor's  guardian  is  required,  lb. 

^Venezuela  (1862  Code  Com.  Art.  8). 

3Chitty  27 ;  Warwick  v.  Bruce,  2  M.  &  S.  205  (1813) ;  S.  C,  6  Taunt.  118. 
See,  too,  Byles  59 ;  Story  on  Prom.  Notes  §  67  ;  1  Parsons  67 ;  Tucker  v.  More- 
land,  10  Pet.  59  (1836) ;  Rogers  v.  Hurd,  4  Day  57  (1809) ;  Woolston  v.  King, 
Pen.  1049  (N.  J.  1813) ;  Moses  v.  Stevens,  2  Pick.  332  (1824). 

4 Hands  v.  Slaney,  8  T.  R.  578. 

6Grace  v.  Hale,  2  Humph.  27  (1840). 

*  Shropshire  v.  Burns,  46  Ala.  108  (1871). 

'Vent  v.  Osgood,  19  Pick.  572  (1837). 

8Chapin  v.  Shafer,  49  N.  Y.  407  (1872). 

9Harner  v.  Dipple,  31  Ohio  St.  72  (1876). 

10  Willard  v.  Stone,  7  Cow.  22  (1827).  So,  too,  a  marriage  settlement,  Jones 
v.  Butler,  30  Barb.  641  (1859). 

11  Williams  v.  Moor,  11  M.  &  W.  256  (1843). 

"Bool  v.  Mix,  17  Wend.  119  (1837);  Wheaton  v.  East,  5  Yerg.  41  (1833); 
Bozeman  t».  Browning,  31  Ark.  364  (1876).     But  see  Porch  v.  Fries,  3  C.  E. 

■Green  204. 


390  CAPACITY INFANTS. 

Executed. — The  true  distinction  is  probably  between  con- 
tracts which  are  for  the  advantage  of  the  infant  and  those 
which  are  not,  the  latter  being  held  to  be  void  and  the  for- 
mer only  voidable.1  Thus,  a  note  given  by  an  infant  for  the 
debt  of  another,  is  void,2  although  it  has  been  held  that  even 
such  a  note  may  be  ratified.3  On  the  other  hand,  a  contract 
for  the  hire  of  a  servant,  which  has  been  for  the  benefit  of 
the  minor,  will  be  binding  upon  him.4  And  it  has  been 
held  that  a  contract  which  has  been  made  for  the  advantage 
of  the  infant,  may  be  enforced  against  him  in  equity.5  But 
if  the  contract  be  merely  executory,  e.  g.  a  sale  of  goods  to 
be  delivered,  it  will  not  be  binding  on  the  infant  without 
such  delivery  made.6 

§  268.  Contracts  in  Trade. — Where  an  infant  is  engaged 
in  trade,  either  alone  or  as  member  of  a  firm,  his  contract  in 
such  business  is  voidable  only.7  And  even  his  note  given 
for  goods  purchased  by  his  firm  has  been  held  to  be  voidable 
only.8  An  infant  is  not,  however,  liable  in  general  on  a 
partnership  note  given  by  the  firm,  to  which  he  belongs.9 
As  to  the  infant  partner  such  note  is  voidable,  and  it  seems 
that  if  it  be  a  joint  note,  the  other  partners  cannot  be  held 
upon  it  without  him,  until  it  is  disaffirmed  by  him.10     If, 

'Zouch  v.  Parsons,  Burr.  1794,  recognized  by  Lord  Eldon  in  17  Ves.  Jr. 
383 ;  Allen  v.  Allen,  2  D.  &  W.  307 ;  Rogers  v.  Hard,  4  Day  57  (1809). 

2  Maples  v.  Wightman,  4  Conn.  376  (1822);  Wentworth  v.  Wentworth,  5 
N.  H.  410  (1831) ;  Fetron  v.  Wiseman,  40  Ind.  148  (1872) ;  Williams  v.  Har- 
rison, 11  So.  Car.  12  (1878). 

"Owen  v.  Long,  112  Mass.  403  (1873);  Fetron  v.  Wiseman,  supra;  Wil- 
liams v.  Harrison,  supra. 

*  Wood  v.  Fenwick,  10  M.  &  W.  195  (1842). 

"Radford  v.  Westcott,  1  Desaus.  596  (1800). 

6  Fonda  v.  Van  Home,  15  Wend.  635  (1836). 

THunt  v.  Massey,  5  B.  &  Ad.  902  (1834) ;  S.  C,  2  Nev.  &  M.  109.  So,  too, 
a  note  for  goods  purchased  for  business  purposes,  Wright  v.  Steele,  2  N.  H. 
51  (1819) ;  Thing  v.  Libbey,  16  Me.  55  (1839)  ;  Booth  v.  McFarland,  2  La.  An. 
398  (1847);  Skinner  v.  Maxwell,  66  N.  C.  4=>  (1872).  But  see,  contra,  as  to 
an  infant's  business  note,  Van  Winkle  v.  Ketcham,  3  Cai.  323  (1805) ;  Hous- 
ton v.  Cooper,  Pen.  866  (N.  J.  1811).  And  as  to  other  business  contracts, 
e.  g.  a  sale  of  goods,  Latt  v.  Booth,  3  C.  &  K.  292. 

8Minock  v.  Shortridge,  21  Mich.  304  (1870). 

9Conklin  v.  Ogborn,  7  Ind.  553  (1856);  James  v.  Alford,  15  La.  An.  506 
(1860). 

10Walmsley  v.  Lindenberger,  2  Rand.  478  (1824). 


I 


CONTRACTS    FOR    NECESSARIES.  391 

however,  the  infant  has  failed  to  give  public  notice  of  his 
leaving  the  firm,  he  will  be  liable,  after  coming  of  age,  upon 
firm  notes  given  after  that  time,  as  in  the  case  of  an  adult 
retiring  partner.1 

§  269.  Contracts  for  Necessaries. — An  exception  to  the 
rule  exonerating  infants  from  liability,  is  made  by  the  law 
in  favor  of  contracts  for  necessaries.  But  what  are  necessaries 
is  a  question  of  fact  for  the  jury.2  Where  one  who  sells 
goods  to  an  infant  seeks  to  recover  for  them  as  necessaries, 
he  assumes  the  burden  of  proving  them  such.3  Among 
many  things  held  under  the  circumstances  of  the  individual 
case  to  be  necessaries  for  an  infant  are  a  miner's  outfit,4 
solitaire  diamonds,5  board,6  funeral  expenses  for  husband.7 
While,  on  the  contrary,  a  horse  and  saddle,8  horse  hire  for 
a  minor  student  at  Oxford,9  and  even  college  tuition  and 
room-rent,10  have  been  held  not  to  be  necessaries.  The  cir- 
cumstances of  each  particular  case  must  be  left  to  determine 
'die  question  as  one  of  fact  only  in  that  case. 

But  if  the  infant  is  provided  with  necessaries,  he  will  not 
be  liable  for  goods  which  might  otherwise  be  held  necessary 
for  him.11  So,  too,  if  he  is  living  with  his  parents,12  or  has 
left  his  father's  house  voluntarily,13  or  has  purchased  the 
goods  without  the  consent  of  his  guardian,  while  remaining 

'Goode  v.  Harrison,  5  B.  &  Aid.  147. 

2Rvder  v.  Wombwell,  L.  R.  4  Ex.  32  (1868) ;  Bonney  v.  Reardin,  6  Bush 
34  (1869). 
3Kline  v.  L'Amoureux,  2  Paige  419  (1831). 
♦Breed  v.  Judd,  1  Gray  455  (1854). 
'Ryder  v.  Wombwell,  L.  R.  4  Ex.  32  (1868). 

•Bradly  v.  Pratt,  23  Vt.  378  (1851).     And  a  note  given  for  it  was  held 

valid,  I/k 

'Chappie  v.  Cooper,  13  M.  &  W.  252. 
"Beeler  v.  Young,  1  Bibb  519  (1809). 
'Harrison  v.  Fane,  1  Man.  &  G.  550  (1840). 
"Middlebury  College  v.  Chandler,  16  Vt.  683  (1844). 

"Byles  59;  1  Daniel  227  ;  Kline  v.  L'Amoureux,  2  Paige  419  (1831) ;  Per- 
rin  e.  Wilson,  10  Mo.  451  (1847). 

"  Wailing  v.  Toll,  9  Johns.  141  (1812) ;  Connolly  v.  Hull,  3  McCord  6  (1825) ; 
Jones  v.  Colvin,  1  McMull.  14  (1840). 
13Angel  v.  McLellan,  16  Mass.  28  (1819). 


392  CAPACITY INFANTS. 

under  his  charge,1  he  will  not  be  liable  for  them  as  neces- 
saries. Nor  will  he  be  liable  for  food  and  clothing  furnished 
him  under  an  indenture  of  apprenticeship  which  is  void  for 
want  of  his  guardian's  consent.2  Moreover,  an  infant  is  not 
liable  for  money  borrowed,  although  he  has  spent  it  on  neces- 
saries.3 But  a  debt  so  incurred  will  be  included  under  a 
general  provision  in  his  will  for  the  payment  of  his  debts.4 
In  like  manner,  an  account  stated  by  an  infant  for  necessaries 
will  not  be  binding  upon  him,  although,  as  we  have  seen,  it 
may  afterward  be  ratified  by  him.5  So,  a  bond  with  penalty 
and  interest  given  by  an  infant  is  of  no  effect,  and,  it  is  said, 
cannot  be  ratified;6  although,  it  seems,  he  may  give  a  bond 
without  penalty  or  interest  for  the  exact  sum  due  for  neces- 
saries furnished  him.7 

§  270.  Commercial  Paper — Infant  Maker — Acceptor. — The 
oill  or  note  of  an  infant,  like  his  other  contracts,  is,  in  gen- 
eral, voidable  only  and  may  be  ratified.8  On  the  other  hand, 
a  court  of  equity  will  assume  jurisdiction  for  the  purpose  of 
setting  aside,  on  the  ground  of  fraud,  a  note  made  after 
the  maker's  attaining  his  majority,  for  extravagant  supplies 
sold   to  him  while  an  infant.9      But  a  note   given   by  an 

_  l  Watson  v.  Heasel,  7  Watts  344  (1838).  Nor  will  the  guardian  himself  be 
liable  in  such  case,  Elrod  v.  Myers,  2  Head  33  (1858).  Bat  a  guardian,  who 
has  assented  to  a  sale  of  goods  to  his  ward,  cannot  avoid  it,  Oliver  v.  Houd- 
let,  13  Mass.  237  (1816). 

2 Guthrie  v.  Murphy,  4  Watts  80  (1835). 

3  Darby  v.  Boucher,  1  Salk.  279. 

4Marlow  v.  Pitfield,  1  P.  Win.  558. 

5Byles  61 ;  Chitty  26 ;  1  Edwards  I  32 ;  Trueman  v.  Hirst,  1  T.  R.  40 ;  Bart- 
lett  v.  Emery,  lb.  42  n.;  Ingledew  v.  Douglass,  2  Stark.  36  (1817). 

6  Story  on  Prom.  Notes  \  77;  Baylis  v.  Dinely,  3  M.  &  S.  477  (1815) ;  Hun- 
ter  v.  Agnew,  1  Fox  &  Sm.  15;  Russell  v.  Lee,  1  Lev.  86;  Fisher  v.  Mow- 
bray, 8  East  330  (1807). 

'Byles  59;  Chitty  26;  1  Daniel  227;  1  Parsons  68;  Russell  v.  Lee,  1  Lev. 
86;  trueman  v.  Hirst,  1  T.  R.  41. 

8Byles60;  Chitty  27;  1  Daniel  226;  Reed  v.  Batchelder,  1  Mete. 559  (1840) ; 
Everson  v.  Carpenter,  17  Wend.  419  (1837) ;  Hodges  v.  Hunt,  22  Barb.  150 
(1856) ;  Stokes  v.  Brown,  3  Pinney  311  (Wis.  1851) ;  Font  v.  Cathcart,  S  Ala. 
725  (1845) ;  Best  v.  Givers,  3  B.  Mon.  72  (1842) ;  Aldrich  v.  Graves.  10  N.  H.  194 
(1839) ;  Boody  v.  McKenney,  23  Me.  517  (1844) ;  Goodsell  v.  Myers,  3  Wend. 
479  (1830) ;  Alsop  v.  Todd,  2  Root  109  (1794) ;  Stern  v.  Freeman,  4  Mete.  309 
(Ky.  1863);  Trustees  of  La  Grange  Inst.  v.  Anderson,  63  Ind.  367  (1878); 
Wright  v.  Steele,  2  N.  H.  51  (1819) ;  Thing  v.  Libbey,  16  Me.  55  (1839). 

9  Brook  v.  Galby,  2  Atk.  34. 


COMMERCIAL    PAPER.  393 

infant  for  the  exact  value  of  necessaries  supplied  to  him  will 
support  a  recovery,1  although  it  may  be  doubted  whether  the 
note  in  such  cases  is  more  than  prima  facie  evidence  of  the 
purchase  made  and  the  value  of  the  goods.2  But  if  the 
note  be  ratified  by  the  infant  after  attaining  full  age,  there 
can  be  no  doubt  of  its  legal  force.3  Such  a  note  has,  how- 
ever, been  held  valid  without  ratification  so  as  to  render  the 
maker  liable  to  a  surety  paying  the  same.4 

The  general  rule,  nevertheless,  remains  unaltered,  that 
without  ratification  an  infant  is  not  liable  on  his  note  as  such, 
although  given  for  necessaries;5  while  some  cases  hold  such 
s,  note  to  be  void,6  leaving  unaffected  the  payee's  right  to 
recover  the  value  of  the  necessaries  furnished.7  And  in 
such  case  a  bill  of  exchange  given  for  necessaries  has  been 
canceled  by  a  court  of  equity  and  decree  rendered  for  the 
payment  of  the  reasonable  value.8  So,  the  collection  of  a 
note  made  by  an  infant  has  been  restrained  by  injunction.9 
It  has  been  held,  however,  that  such  a  note  given  for  neces- 
saries is  admissible  evidence,  under  the  common  counts,  to 
sustain  a  recovery  for  the  value  of  the  goods  furnished.10 

On  the  same  principle,  the  acceptance  of  a  bill  of  exchange 
by  an  infant  is   invalid.11      Although  he   would  be  liable 

'Bradlv  v.  Pratt,  23  Vt.  378  (1851);  Dubose  v.  Wheddon,  4  McCord  221 
0827).  But  see  Fenton  v.  White,  1  South.  100  (1818).  And  see,  contra, 
Ayers  v.  Burns,  87  Ind.  245  (1882). 

2 Morton  v.  Steward,  5  Bradw.  533  (1879). 

9Lawson  v.  Lovejoy,  8  Me.  405  (1832) ;  Cheshire  v.  Barrett,  4  McCord  241 
(1827) ;  Bobs  v.  Hansell,  Bailey  114  (1831). 

•Haines'  Admr.  v.  Tenant,  5  Hill  400  (So.  Car.  1834);  Conn  v.  Cobttrn,  7 
N.  H.  372  (1834). 

BEven  though  such  note  has  not  been  disaffirmed  on  the  infant's  coming 
of  age,  Buzzell  v.  Bennett,  2  Cal.  101  (1852) ;  Dunlap  v.  Hales,  2  Jones  381 
(1855). 

■Swasey  v.  Vanderhevden,  10  Johns.  33  (1813) ;  Henderson  v.  Fox,  5  Ind. 
489  (1851);  Fenton  v.  White,  1  South.  100  (1818);  Morton  v.  Steward,  5 
Bradw.  533  (1879). 

7Earle  v.  Reed,  10  Mete.  387  (1845). 

■McMinn  v.  Richmonds,  6  Yerg.  9  (1834). 

9 Parker  v.  Baker,  1  Clarke  136  (N.  Y.  1839). 

10Rundel  v.  Keeler,  7  Watts  237  (1838). 

"Williams  v.  Harrison,  3  Salk.  107;  Williamson  v.  Watts,  1  Canipb.  352. 
But  see  Jones  v.  Darch,  4  Pr.ice  300.  And  a  ratification  of  such  an  accept 
ance  alter  action  brought  will  not  support  the  action,  Thornton  v.  Illing- 


394  CAPACITY INFANTS. 

on  an  acceptance,  given  after  attaining  the  age  of  twenty-one 
years,  upon  a  bill  drawn  on  him  during  his  infancy.1 

§  271.  Infant  Indorser. — In  like  manner  the  indorsement 
of  an  infant  is  voidable.2  But  notwithstanding  the  infancy 
of  the  indorser,  the  maker,  drawer  and  acceptor  remain 
liable.3  And  this  is  true,  in  general,  not  only  as  to  infancy, 
but  upon  all  other  questions  of  the  indorser's  capacity.  The 
maker  of  a  note,  or  the  drawer  of  a  bill  of  exchange,  can- 
not question  the  payee's  capacity  to  indorse  it.4  If,  how- 
ever, the  payee's  infancy  is  known  both  to  his  indorsee  and  to 
the  maker  of  the  note,  payment  by  the  latter  to  the  indorsee 
will  be  no  defense  to  an  action  brought  on  the  note  by  the 
payee's  guardian.5  But  if,  on  the  other  hand,  the  note  was 
transferred  without  such  notice  to  the  indorsee,  payment  to 
the  father  of  the  infant  payee  would  constitute  no  defense  to 
an  action  by  the  indorsee.6  If,  indeed,  the  indorsement  of 
tiie  infant  and  the  note  to  him  have  been  rescinded,  and  a 
new  note  given  by  the  maker  of  the  original  note  to  the 
father  of  the  infant  payee  in  consideration  of  discharge  from 
liability  on  the  old  note,  it  will  bar  a  recovery  on  the  first 
note.7 

§  272.  Defense  of  Infancy — A  Personal  Privies  Estop- 
pel.— The  privilege  of  avoiding  an  infant's  note  or  indorse- 
ment for  want  of  capacity   belongs  only  to  him  and  to  his 

worth,  2  B.  &  C.  824  (1824.)  But  an  acceptance  may  be  ratified  before  action 
brought,  Hunt  v.  Massey,  5  B.  &  Ad.  902  (1834) ;  S.  C,  2  Nev.  &  M.  109. 

^yles  61 ;  Chitty  26;  Stevens  v.  Jackson,  4  Campb.  164. 

2Semple  v.  Morrison,  7  T.  B.  Mon.  298  (1828). 

3Tavlor  v.  Croker,  4  Esp.  187  (1802) ;  Grey  v.  Cooper,  1  Selw.  N.  P.  302;  S. 
C,  3  Dougl.  65;  Nightingale  v.  Withington,  15  Mass.  272  (1818)  ;  Frasier  v. 
Massey,  14  Ind.  382  (I860) ;  Hardy  v.  Waters,  38  Me.  450  (1853) ;  Hastings  v. 
Dollarhide,  24  Cal.  195  (1S64). 

4On  account  of  bankruptcy,  Drayton  v.  Dale,  2  B.  &  C.  293  (1823) ;  Pitt  v. 
Chappelow,  8  M.  &  W.  616(1841);  or  want  of  authority  in  a  corporation 
payee,  Halifax  v.  Lyle,  3  Exch.  446  (1849) ;  or  want  of  compliance  with  the 
law  of  a  foreign  country,  where  the  transfer  was  made,  Lebel  v.  Tucker,  8 
B.  &  S.  833.  But  see,  contra,  as  to  maker's  right  to  set  up  in  his  defense  the 
indorsee's  insanity,  Burke  v.  Allen,  29  N.  H.106  (1854). 

5Briggs  v.  McCabe,  27  Ind.  327  (1866).  And  in  such  case  the  declaration 
need  not  aver  a  disaffirmance  by  the  infant  before  such  payment,  lb. 

6Nightingale  v.  Withington,  15  Mass.  272  (1818). 

'Willis  v.  Twambly,  13  Mass.  204  (1816). 


DEFENSE    OF    INFANCY.  395 

personal  representatives.1  And  an  infant  is  not  estopped 
from  setting  up  such  defense  by  reason  of  having  made  false 
representations  as  to  his  age.2  So,  a  note  signed  "A.  B., 
widow,"  will  not  estop  the  maker  from  showing  her  coverture 
in  defense.3  Nor  is  a  married  woman  liable,  on  a  note  given 
by  her,  for  her  false  representations  in  the  nature  of  a  war- 
ranty of  her  capacity.4  But  an  infant  who  has  obtained  a 
loan  through  false  representations  as  to  his  age,  has  been 
held  liable  in  equity,  so  far  as  to  render  the  debt  contracted 
provable  in  bankruptcy.5  And,  in  Iowa,  an  infant  is 
made  liable  by  statute  for  his  false  representations  as  to 
his  age.6 

It  follows  from  the  principle  above  laid  down  as  to  an  in- 
fant's estoppels,  that  he  cannot  be  rendered  liable  in  such  a 
case  for  his  contracts,  entered  into  under  fraudulent  repre- 
sentations as  to  his  age,  by  merely  changing  the  form  of 
remedy  sought  into  an  action  for  fraud  or  tort.7  If,  however, 
the  tort  is  distinct  from  all  question  of  contract,  he  is  liable 

1  Hastings  v.  Dollarhide,  2-4  Gal.  195  (1864).  And  a  co-maker  with  an 
infant  will  be  liable  as  a  sole  maker  on  discontinuance  of  the  suit  as  to  the 
infant,  Taylor  v.  Dansby,  42  Mich.  82  (1879). 

"Johnson  v  Pye,  1  Keb  905;  S.  C,  1  Lev.  169;  Manby  v.  Scott,  1  Sid.  109; 
Jennings  v.  Rundall,  8  T.  R.  335 ;  Bartlett  v.  Wells,  1  B.  &  S.  836  (1862) ;  Fitts 
v.  Hall,  9  N.  H.  441  (1838) ;  Conroe  v.  Birdsall,  1  Johns.  Cas.  127.  And  such 
false  representations  cannot  serve  as  matter  for  replication  at  law  or  in 
equity  to  a  plea  of  infancy,  Bartlett  v.  Wells,  1  B.  &  S.  836  (1862). 

•Cannarn  v.  Farmer,  3  Exch.  698  (1849). 

4  Wright  v.  Leonard,  11  C.  B.  (n.  s.)  258  (1861). 

bEx  parte  Unity  Banking  Assoc,  3  DeG.  &  J.  63  (1858).  But  relief  against 
a  marriage  settlement  by  an  infant  will  not  be  refused  him  in  equity  because 
of  his  false  representation  as  to  his  age,  which  lias  not  misled  the  party 
benefited  by  the  settlement,  Nelson  v.  Stocker,  4  DeG.  &  J.  458  (1S59). 

eIowa  R.  C.  1880  renders  an  infant  liable  on  all  contracts  not  disaffirmed 
within  a  reasonable  time  ($  2238),  ami  provides  (g  2239)  that  '"  no  contract 
can  he  thus  disaffirmed  in  eases  where,  on  account  of  the  minor's  own  mis- 
representations as  to  his  majority  or  from  his  having  engaged  in  business  as 
an  adult,  the  other  party  had  good  reason  to  believe  the  minor  capable  of 
contracting."  And  it  is  not  necessary  under  this  statute  that  the  debt 
should  have  been  contracted  in  the  minor's  business,  Jaques  v. Sax, 39  Iowa 
367.  If.  however,  the  other  contracting  party  knew  of  the  minor's  infancy, 
the  infant  is  not  liable  on  the  contract,  Beller  v.  Marchant,  30  Iowa  35U 
(1870). 

'Grove  v  Neville,  1  Keb.  778;  People  v.  Kendall,  25  Wend.  399  (1841); 
Brown  v.  Durham,  1  Root  272  (17(.)1 ) ;  Wilt  v.  Welsh,  6  Watts  9  (1837)  ;  West 
r.  Moore,  14  Vt.  447  (1842);  Morrill  v.  Aden,  19  lb.  505  (1847);  Vasse  v. 
Smith,  6  Cranch  226  (1810);  Fitts  v.  Hall,  9  N.  H.  441  (1838);  Heath  v.- 
Mahonev,  14  N.  Y.  S.  C.  100  (1876). 


396  CAPACITY — INFANTS. 

as  in  other  cases  of  tort.1  Thus,  he  would  be  liable  for  re- 
taining a  deposit  of  stakes  made  with  him  on  an  illegal  wager 
contract.2  And  he  might,  in  a  proper  case,  be  held  crimi- 
nally for  his  wrongful  act  or  representation.3  So,  he  would 
be  liable  on  his  note  given  in  settlement  of  damages  for 
wrongfully  overdriving  a  horse,4  or  in  compromise  of  a  bas- 
tardy proceeding;5  but  not  on  a  note  given  in  settlement  of 
an  award  for  a  tort  committed  by  him.6 

§  273.  Ratification — What  Amounts  to. — If  a  person,  after 
attaining  full  age,  promise  expressly  to  pay  a  liability  con- 
tracted by  him  while  a  minor,  this  will  amount  to  a  ratifica- 
tion of  it.7  And  he  may  in  this  way  ratify  a  note  or  bill 
made  during  his  infancy,  but  the  ratifying  promise  must  be 
express.8  In  the  language  of  Chief  Justice  Savage,  "  a  rati- 
fication of  an  infant's  contract  should  be  something  more 
than  a  mere  admission  to  a  stranger  that  such  a  contract  ex- 
isted. There  should  be  a  promise  to  a  party  in  interest  or 
his  agent,  or,  at  least,  an  explicit  admission  of  an  existing 
liability  from  which  a  promise  may  be  implied."9  A  mere 
declaration  of  intention  is  not  sufficient  for  this  purpose,10  nor 
&  mere  acknowledgment,  or  a  promise  after  action  brought.11 
Where  there  is  a  sufficient  new  promise,  the  action  properly 

1  Wallace  v.  Morss,  5  Hill  391  (1843) ;  Vasse  v.  Smith,  6  Cranch  226  (1810) ; 
Fitts  v.  Hall,  9  N.  H.  441  (1838) ;  Town  v.  Wiley,  23  Vt.  355  (1851);  Nelson 
v.  Stocker,  28  L.  J.  Ch.  760;  4  DeG.  &  J.  458  (1859). 

2 Lewis  v.  Littlefield,  15  Me.  233  (1839). 

3People  v.  Kendall,  25  Wend.  399  (1841). 

4  Ray  v.  Tubbs,  50  Vt.  688  (1878). 

5 Gavin  v.  Burton,  8  Ind.  69  (1856) 

6 Hanks  v.  Deal,  3  McCord  257  (1825). 

7Ackerman  v.  Runyon,  1  Hilt.  169  (1856). 

8Chittv  27;  Wilcox  v.  Roath,  12  Conn.  550  (1838) ;  Millard  v.  Hewlett,  19 
Wend.  301  (1838);  Conklin  v.  Ogborn,  7  Ind.  553  (1856);  Alexander  v. 
Hutcheson,  2  Hawks  535  (N.  C.  1823) ;  Petty  v.  Roberts,  7  Bush  410  (1870) ; 
Baker  v.  Kennett,  54  Mo.  82  (1873). 

9Goodsell  v.  Myers,  3  Wend.  479  (1830).  So,  too,  Hoit  v.  Underhill,  9  N. 
H.  436  (1838) ;  Bigelow  v.  Grannis,  2  Hill  120  (1841). 

10Orvis  v.  Kimball,  3  N.  H.  314  (1825). 

"Thrupp  v.  Fielder,  2  Esp.  628  (1798) ;  Ford  v.  Phillips,  1  Pick.  202  (1822) ; 
Proctor  v.  Sears,  4  Allen  95  (1862)  ;  Hinely  v.  Margaritz,  3  Penna.  St.  428 
(1846)  ;  Conklin  v.  Ogborn,  7  Ind.  553- (1856) ;  Ring  v.  Jamison,  2  Mo.  App 
584  (1876). 


RATIFICATION.  397 

lies  on  the  latter  and  not  on  the  original  note.1  And  such 
promise  may  be  only  to  pay  a  part  and  would  then  amount, 
like  a  part  payment,  only  to  a  ratification  -pro  tanto'}  So, 
where  a  joint  note  is  paid  in  part  by  one  of  the  makers,  who 
is  an  adult,  and  the  other,  an  infant,  promises,  after  attaining 
his  full  age,  to  pay  the  balance,  this  will  be  a  ratification  of 
the  note.3  So,  a  letter  relating  to  an  award  of  dower  and 
inclosing  a  payment  with  the  words,  "  in  part  toward  your 
right  of  dower — The  remainder  I  shall  forward  you  in  a  few 
days,"  amounts  to  a  ratification  of  the  award.4  So,  an  agree- 
ment, after  attaining  the  age  of  twenty-one,  to  pay  a  note  in 
work  or  money,  is  sufficient  ratification,5  or  to  pay  "  when  I 
return  from  this  voyage."6  So,  too,  the  following:  "I  am 
not  prepared  for  you,  but  will,  without  neglect,  remit  you  in 
a  short  time,"  naming  neither  amount  nor  payee.7  So,  an 
agreement  that  a  bill  of  exchange  should  be  paid  shortly;8 
or  that  he  "  would  endeavor  to  procure  the  money  and  send 
it  to  him."9  But  a  promise  to  pay  "  when  he  could,"  is  con- 
ditional and  requires  proof  of  the  promisor's  ability  to  pay.™ 
§  274.  And,  in  general,  if  the  new  promise  fall  short  of 
an  absolute  promise  to  pay,  it  will  not  be  equivalent  to  a  rati- 
fication. This  was  held  in  the  case  of  a  letter,  saying,  "if 
they  will  not  accept  of  the  proposition,  I  suppose  I  will  have 
to  pay  for  them,  but  I  shall  do  so  at  my  convenience,  as  it 

lodges  v.  Hunt,  22  Barb.  150  (1856). 

'Hinely  v.  Margaritz,  3  Penna.  St.  428  (1846). 

3  Pierce  v.  Tobey,  5  Mete.  168  (1842). 

4Barnby  v.  Barnby,  1  Pick.  221  (1822). 

'Edgerly  v.  Shaw,  25  N.  H.  514  (1852). 

"Martin  v.  Mayo,  10  Mass.  137  (1813).  And  this  was  held  not  to  be  a 
promise  conditioned  on  his  safe  return,  but  his  estate  was  held  liable  not- 
withstanding his  death  at  sea. 

7  Hartley  v.  Wharton,  11  Ad.  &  El.  934  (1840). 

"Harris  v.  Wall,  1  Exch.  122  (1847).  In  this  case  the  rule  was  laid  down 
by  Baron  Rolfe  that  "  any  act  or  declaration,  which  recognizes  the  existence 
of  the  promise  as  binding,  is  a  ratification.  *  *  *  Any  written  instru- 
ment signed  by  the  party,  which  in  the  case  of  adults  woufcl  have  amounted 
to  the  adoption  of  the  act  of  a  party  acting  as  agent,  will  in  the  case  of  an 
infant  who  has  attained  his  majority  amount  to  a  ratification." 

"Whitney  v.  Dutch,  14  Mass.  457  (1817). 

10Cole  v.  Saxby,  3  Esp.  159  (1800)  ;  Thompson  v.  Lay,  4  Pick.  48  (1826); 
Everson  v.  Carpenter,  17  Wend.  419  (1837). 


398  CAPACITY INFANTS. 

will  be  nothing  less  than  a  free  gift  on  my  part,  the  negroes 
being  entirely  worthless."1  So,  a  letter  saying,  "I  consider 
it  worthy  my  attention,  but  not  my  first  attention — As  soon 
as  I  can  settle  my  business,  I  will  give  it  the  attention  due 
to  it."2  So,  it  is  not  a  sufficient  ratification  of  an  infant's 
note  to  make  a  will  after  coming  of  age  directing  the  pay*- 
ment  of  all  his  just  debts;3  or  to  say  he  would  pay  "as  fast 
aa  he  got  able  ;"4  or  that  the  plaintiff  "  would  get  his  pay  ;"5 
or  to  tell  the  holder  of  an  accommodation  acceptance  to 
•"  make  yourself  easy  about  it,  as  I  will  take  care  that  it  is 
paid;"6  or  to  promise,  while  under  arrest,  to  pay  part  of  a 
note,  if  released.7 

But  the  employment  of  an  agent  to  find  a  note  and  pay  it, 
has  been  held  to  be  a  ratification,  although  the  agent  did  not 
pay  it.8  So,  the  delivery  of  corn  in  part  payment;9  or  re- 
taining, for  an  unreasonable  time,  goods  for  which  the  note 
was  given,10  and  selling  part  of  them.11  So,  if  an  infant 
receive  a  note  in  payment  for  work  done  by  him  and  retain 
it  eight  months  after  coming  of  age,  he  will  be  deemed  to 
have  ratified  the  payment  and  discharged  the  original  debtor.12 
In  like  manner,  if  the  purchaser  of  goods  die,  while  still 
under  age,  after  giving  his  note  for  them,  the  retention  of 
the  goods  by  his  administrator  will  be  a  ratification  of  the 
note.13     So,  if  money  due  to  an  infant  be  paid  to  his  guardian, 

^unlap  v.  Hales,  2  Jones  381  (1855). 

» Wilcox  v.  Kouth,  12  Conn.  550  (1838). 

3 Smith  v.  Mayo,  9  Mass.  62  (1812). 

'Chandler  v.  Glover,  32  Penna.  St.  509  (1859). 

5  Hale  v.  Gerrish,  8  N.  H.  374  (1836). 

6Mawson  v.  Blane,  10  Exch.  206  (1854),  Baron  Parke,  in  this  case,  p.  210, 
defining  ratification  to  be  "  an  admission  that  the  party  is  liable  and  bound 
to  pay  the  debt  arising  from  a  contract  which  he  made  when  an  infant." 

7 Martin  v.  Byrom,  Dudley  203  (1832). 

8Orvis  v.  Kimball,  3  N.  H.  314  (1825). 

9Stokes  v.  Brown,  3  Pinney  311  (Wis.  1851). 

10  Boy  den  v.  Boyden,  9  Mete.  519  (1845);  Booth  v.  McFarland,  2  La.  An. 
398  (1847). 

"Boyden  v.  Boyden,  supra. 

12 Delano  v.  Blake,  11  Wend.  86  (1833). 

"Shropshire  v.  Burns,  46  Ala.  108  (1871). 


RATIFICATION.  399 

and  he  receive  it  from  the  guardian  after  arriving  at  full  age, 
it  will  ratify  the  payment.1 

§  275.  Ratification  —  Implied. —  Ratification  may  be  im- 
plied as  well  as  express.  The  mere  acquiescence  of  the 
drawer  of  an  order,  without  any  disaffirmance  for  several 
years  after  coming  of  age,  and  after  receiving  notice  of  non- 
payment, will  amount  to  a  ratification.2  So,  failure  for  an 
unreasonable  time  after  coming  of  age  to  disaffirm  a  marriage 
settlement,  raises  a  presumption  that  it  has  been  ratified.3 
Or,  as  we  have  seen,  retaining  the  goods,  for  which  the  note 
was  given,  especially  after  return  of  them  has  been  demanded.4 

But  a  subsequent  promise  to  pay  a  note  made  while  under 
age,  is  no  waiver  of  errors  in  a  judgment  rendered  on  the 
note.5  Nor  is  it,  in  England,  a  ratification  under  the  In- 
fants' Relief  Act  to  suffer  a  judgment  by  default  on  the  note.6 

Acquiescence,  however,  for  several  years  in  a  sale  of  land 
made  during  infancy,7  or  continuing  in  possession  of  land 
purchased  during  infancy  and  expressly  promising  to  pay  a 
note  given  for  it,8  or  continuing  in  possession  and  making  a 
sale  of  it  after  coming  of  age,9  is  an  act  of  ratification ;  as, 
also,  taking  a  property  in  exchange  and  retaining  it  ten 
years  ;10  giving  a  note  for  land  purchased  and  mortgaging  the 
land  after  coming  of  .age;11  or  occupying  and  improving  it 
after  coming  of  age  and  offering  it  for  sale.12     But  remaining 

'Jones  v.  Phoenix  Bank,  8  N.  Y.  228  (1853) ;  Pursley  v.  Hays,  17  Iowa  310 
(1864). 

■Thomasson  v.  Boyd,  13  Ala.  419  (1848). 

3  Jones  v.  Butler,  30  Barb.  641  (1859). 

4Aldrich  v.  Graves,  10  N.  H.  194  (1839). 

5Goodridge  v.  Ross,  6  Mete.  487  (1843). 

6Ex  parte  Kibble,  L.  R.  10  Ch.  App.  373  (1875).  But  where  an  infant  ac- 
cepted a  deed  of  land  containing  a  clause  assuming  the  payment  of  a 
mortgage  upon  it,  suffering  a  foreclosure  without  defense  has  been  held  in 
New  York  to  raise  the  presumption  of  a  ratification,  Flinn  v.  Powers,  36 
How.  Pr.  289  (1868). 

'Belton  v.  Briggs,  4  Desaus.  465  (1814). 

"Armfield  v.  Tate,  7  Ired.  258  (1847). 

'Hubbard  v.  Cummings,  1  Me.  11  (1820). 

10Deason  v.  Boyd,  1  Dana  45  (1833). 

11  Montgomery  v.  Whitbeck,  23  Minn.  173  (1876) 

"Robbins  v.  Eaton,  10  N.  H.  561  (1840). 


400  CAPACITY — INFANTS. 

in  possession  for  six  weeks  after  coming  of  age,1  or  remain- 
ing in  possession  and  submitting  to  arbitration,2  is  not  suffi- 
cient evidence  of  ratification. 

§  276.  Ratification — Requisites:  Writing — Knowledge  — 
Full  Age. — At  common  law,  as  will  be  inferred  from  what 
lias  been  already  said,  ratification  of  an  infant's  note  or  other 
contract  need  not  be  in  writing.  And  even  his  bond  may 
be  ratified  by  a  parol  promise.3  But  it  was  provided,  in 
Great  Britain,  in  1828,  by  Lord  Tenterden's  Act  that  no 
aetion  should  lie  "  upon  a  promise  to  pay  a  debt  contracted 
during  infancy,  or  a  ratification  of  a  contract  or  promise 
made  during  infancy,"  unless  it  be  made  in  writing  and 
signed  by  the  party  to  be  bound  by  it.  And  this  law  has 
been  followed  by  similar  statutes  in  several  of  the  United 
States.4 

Moreover,  as  in  other  cases,  knowledge  of  the  circumstances 
and  of  a  party's  existing  freedom  from  liability  are  necessary 
to  constitute  a  good  ratification.6  Such  knowledge  will,  how- 
ever, in  general  be  presumed.6 

A  proper  ratification  of  an  infant's  contract-  cannot  take 
place  until  he  conres  of  age  ;7  although  it  has  been  held  that, 
as  to  personal  property,  an  infant  may  disaffirm  his  contract 
during  his  minority,8  especially  if  it  be  an  executory  con- 
tract.9    And  it  has  been  held  that  the  manner  of  ratification 

1  Petty  v.  Roberts,  7  Bush  410  (1870). 

2Benham  v.  Bishop,  9  Conn.  330  (1832). 

3  West  v.  Penny,  16  Ala.  186  (1849) ;  Reed  v.  Boshear,  4  Sneed  118  (1856). 

*9  Geo.  IV.  c.  14.  The  law  is  the  same  substantially  in  Kentucky  (1881  G. 
S.  c.  22  §  1)  i  Stern  v.  Freeman,  4  Mete.  309  (Ky.  1863) ;  Maine  (1871  R.  S. 
c.  Ill  I  2);  Missouri  (1879  R.  S.  I  2516);  Neiv  Jersey  (1874  Rev.  446  \  7); 
Virginia  (1873  Code  c.  140  §  1). 

5Kay  v.  Smith,  21  Beav.  522.  Especially  where  the  infant  was  only  a 
surety,  Curtin  v.  Patten,  11  Serg.  &  R.  305  (1824).  ''  In  the  case  of  an  infant 
who  was  merely  surety,  where  the  contract  is  absolutely  void,  it  would  ap- 
pear to  me  to  require  a  confirmation  when  of  full  age  with  an  intention  of 
confirming  and  with  the  knowledge  that  the  act  would  be  void  unless  he 
confirmed  it,"  Duncam,  J.,  in  above  case,  p.  311.  But  see,  as  to  the  knowl- 
edge necessary  in  such  case,  Morse  v.  Wheeler,  4  Allen  570  (1862). 

6Taftv.  Sergeant,  18  Barb.  320  (1854). 

'Dunton  v.  Brown,  31  Mich.  182  (1875);  Corey  v.  Burton,  32  [b.  30  (1875). 

8Roof  v.  Stafford,  9  Cow.  626,  reversing  7  Cow.  179  (1827). 

•Bartholomew  v.  Finnemore.  17  Barb.  429  (1854). 


DISAFFIRMANCE.  401 

should  be  averred  in  pleading.1  And  the  ratification  should 
be  within  a  reasonable  time  after  the  infant  comes  of  age;2 
and  may  be  presumed,  especially  in  the  case  of  a  continuing 
contract,  if  there  be  no  disaffirmance  within  such  reasonable 
time.3 

§  277.  Disaffirmance — Return  of  Consideration  Necessary. — 
An  infant,  on  arriving  at  his  majority,  cannot  disaffirm  his 
contract  without  returning  the  consideration  received  by 
him,  if  that  is  possible.4  And  this  is  expressly  provided  by 
statute  in  Iowa.5  If  an  infant  has  received  goods  in  pay- 
ment for  work  done  by  him,  he  must,  on  disaffirming  the 
contract,  give  credit  to  the  full  value  of  the  goods  received.6 
So,  if  he  disaffirms  a  note  given  by  him  for  the  purchase  of 
property,  the  proceeds  of  the  property  sold  must  be  paid  to 
the  holder  of  the  note.7  And  if,  in  an  exchange  of  property, 
that  received  by  him  is  injured,  no  re-exchange  can  take 
place  on  his  disaffirmance  of  the  contract.8  Nor  could  he 
retain  the  property  received  in  exchange  and  have  an  action 
of  trover  for  that  given  by  him.9 

But  it  has  been  held  that  an  offer  to  return  the  consid- 
eration received    by  an  infant   for  his  indorsement  is  not 

1  Williams  v.  Moor,  11  M.  &  W.  256  (1843). 

2  Thompson  v.  Strickland,  52  Miss.  574  (1876). 

3This  has  been  held  in  case  of  a  partnership,  Goode  v.  Harrison,  5  B.  <fe 
Aid.  147  (1821) ;  or  partnership  lease,  Holmes  v.  Blogg,  8  Taunt.  35  (1817) ; 
or  of  a  note  for  purchase-money  of  land  conveyed,  Richardson  v.  Boright, 
9  Vt.  368  (1837). 

4Lynde  v.  Budd,  2  Paige  191  (1830) ;  Hillyer  v.  Bennett,  3  Edw.  Chy.  222 
I  ISMS) ;  Kitchen  v.  Lee,  11  Paige  107  (1844) ;  Oltman  v.  Moak,  3  Sandf.  Ch. 
431  (1846) ;  Bailey  v.  Bamberger,  11  B.  Mon.  113  (1850) ;  Badger  v.  Phinney, 
15  Mass.  359  (1819) ;  Kilgore  v.  Jordan,  17  Tex.  341  (1856)  ;  Stuart  v.  Baker, 
lb.  417;  Gray  v.  Lessinyton,  5  Bosw.  257  (1857) ;  Smith  v.  Evans,  5  Humph. 
70  (1844) ;  Heath  v.  West,  28  N.  H.  101  (1853).  But  see,  contra,  Dill  v.  Bowen, 
54  Ind.  2()4  (1876),  as  to  disaffirmance  of  a  deed  by  an  infant, 

5  Iowa  R.  C.  1880  \  2238:  "A  minor  is  bound  not  only  by  contracts  for 
necessaries,  but  also  by  his  other  contracts,  unless  he  disaffirms  them  within 
a  reasonable  time  after  he  attains  bis  majority  and  restores  to  the  other 
party  all  money  or  property  received  by  him  by  virtue  of  the  contract  and 
remaining  within  his  control  at  any  time  after  attaining  his  majority." 

6Taft  v.  Pike,  14  Vt.  405  (1842). 

'Strain  v.  Wright,  7  Ga.  568  (1849). 

"Bartholomew  v.  Finnemore,  17  Barb.  428  (1854). 

"Fair  v.  Sumner,  12  Vt.  28  (1840). 

2a 


402  CAPACITY INFANTS. 

necessary  to  his  disaffirmance.1  And  where  a  contract  for 
labor  and  wages  has  been  executed  and  the  wages  paid,  there 
can  be  no  subsequent  disaffirmance  and  recovery  for  addi- 
tional value  of  the  work  performed.2  On  the  other  hand, 
where  work  has  been  performed  in  payment  for  land  con- 
veyed to  the  infant,  a  recovery  by  him  of  the  actual  value  of 
\  the  work  was  afterward  allowed.3 

And  a  contract,  so  far  as  it  remains  executory,  e.  g.  for  a 
partnership,  may  always  be  disaffirmed  and  money  paid  on 
it  recovered.4  So,  too,  a  contract  which  is  usurious  in  its 
terms  may  be  disaffirmed  and  money  paid  on  it  recovered.6 

Any  act  showing  a  clear  purpose  to  disaffirm  a  contract 
will  amount  to  a  disaffirmance  of  it.6  Thus,  a  seaman's  con- 
tract is  disaffirmed  by  desertion  ;7  a  conveyance  to  an  infant, 
by  his  remaining  in  possession  of  the  land  and  conveying  it 
after  he  comes  of  age.8 

§  278.  Action  by  Infant — Defense — Pleading. — As  a  gen- 
eral rule,  infancy  creates  no  incapacity  to  receive  a  bill  or 
note,  or  to  sue  upon  it  as  payee  or  holder.9  And  where  the 
holder  is  a  firm,  of  which  one  partner  is  an  infant,  he  must 
join  with  the  others  in  an  action  brought  by  the  firm.10  And 
it  is  said,  in  like  manner,  that  where  the  suit  is  against  a 
firm  on  its  acceptance,  the  infant's  contract  being  only  void- 
able, he  must  be  joined.11  The  weight  of  authority  seems, 
however,  to  sustain  an  action  in  such  case  against  the  adult 
parties  alone.12     And  an  action  is  plainly  sustainable  against 

'Biiggs  v.  McCabe,  27  Ind.  327  (1866). 

8 Stone  v.  Dennison,  13  Pick.  1  (1832). 

8Medbury  v.  Watrous,  7  Hill  110  (1845),  overruling  McCoy  v.  Huffman,  8 
Cow.  84. 

4Corpe  v.  Overton,  10  Bing.  252  (1833). 

5 Millard  v.  Hewlett,  19  Wend.  301  (1838). 

6Chapin  v.  Shafer,  49  N.  Y.  407  (1872). 

7  Vent  v.  Osgood,  19  Pick.  572  (1837). 

"Tucker  v.  Moreland,  10  Pet.  59  (1836). 

•Holliday  v.  Atkinson,  5  B.  &  C.  501;  S.  C,  8  D.  &  Ry.  163. 

10Teed  v.  El  worth,  14  East  210  (1811) ;  Slocum  v.  Hooker,  13  Barb.  536,  re- 
versing 12  Barb.  563  (1851). 

"Gibbs  v.  Merrill,  3  Taunt.  307. 

12Byles  62;  Chitty  27  ;  1  Daniel  237  ;  Burgess  v.  Merrill,  4  Taunt,  46S.    So, 


ACTION    BY    INFANT.  403 

the  adult  makers  alone  on  a  joint  and  several  note  executed 
by  them  and  an  infant  maker.1 

Infancy  is  available  as  a  defense  on  the  infant's  part 
against  all  holders;2  and  is  admissible  under  a  plea  of  non 
assumpsit,  although  the  contrary  has  been  held  as  to  a  plea 
of  nil  debet.3  But  other  parties,  e.  g.  a  joint  maker,4  or  sub- 
sequent indorser,5  cannot  avail  themselves  of  the  defense, 
which  is,  as  has  been  said,  the  personal  privilege  of  the  in- 
fant and  his  representatives. 

on  other  than  commercial  contracts,  Chandler  v.  Parker,  3  Esp.  76  (1800)  ; 
Jaffrey  v.  Frebain,  5  lb.  47. 

tartness  v.  Thompson,  5  Johns.  160  (1809). 

"Patterson  v.  Cave,  61  Mo.  439  (1875). 

3  Young  v.  Bell,  1  Cranch  C.  C.  342  (1806). 

4  Reid  n,  Pegerer,  82  111.  508  (1876). 

6 So  held  as  to  the  analogous  incapacity  of  coverture,  Haley  v.  Lane,  2 
Atk.  181  (1741) ;  Prescott  Bank  v.  Caverly,  7  Gray  217  (1856) ;  Erwin  v. 
Dowries,  15  N.  Y.  575  (1857);  and,  also,  as  to  the  authority  of  an  agent, 
Burrill  v.  Smith,  7  Pick.  291  (1828). 


404  CAPACITY — MARRIED    WOMEN. 


CHAPTER  IX. 

CAPACITY— MARRIED  WOMEN. 

/.   Coverture  at  Common  Law  and  by  Statute. 
II.  Wife's  Separate  Estate. 
III.  Rights  of  Husband. 

I.    COVERTURE  AT  COMMON    LAW   AND    BY   STATUTE,, 

279.  Common  Law  Modified  by  Statute. 

280.  Contracts  as  to  Separate  Estate. 

281.  Foreign  Statutes — Lex  Loci. 

282.  Liability  on  Bills  and  Notes — Estoppel. 

283.  Recent  Statutes  Affecting  Wife's  Bill  or  Note. 

284.  Commercial  Paper  for  Property  Purchased — Money  Borrowed,. 

287.  Extent  ofrln capacity — Pleading. 

288.  Indorsement  by  Wife. 

289.  Contracts  as  Surety — Accommodation. 

291.  Recent  Statutes. 

292.  Accommodation  and  Express  Charge  of  Separate  Estate. 

293.  Ratification  after  Husband's  Death  or  Divorce. 

294.  Defense  of  Coverture — When  Admissible. 

295.  Contracts  While  Living  Separate. 

296.  Living  Separate  and  with  Separate  Estate. 

297.  as  Sole  Trader. 

298.  Deserted  by  Husband. 

299.  Contracts  as  Sole  Trader. 

§  279.  Common  Law  Modified  by  Statute. — By  the  rules 
of  the  English  common  law  the  person  and  property  of  the 
wife  are  to  a  great  extent  absorbed  in  that  of  the  husband, 
and  her  power  to  make  a  contract  legally  binding  upon  her- 
self or  her  property  is  suspended  during  her  coverture.  The 
severity  of  these  rules  is  wanting  in  the  Roman  law,  which 
prevails,  with  more  or  less  modification,  over  the  whole  con- 
tinent of  Europe  and  in  Central  and  South  America. 

The  common  law  has,  however,  been  greatly  modified  by 
statute  both  in  England  and  in  the  United  States.  In  the 
United  States  a  wife  is  often  made  liable  upon  her  contract  by 
statute  as  a  feme  sole}     In  New  Jersey  she  may  contract  as  an 

lMaine  (1871  R.  S.  491  \  1) ;  Mississippi  (1880  Rev.  Code  §  1167) ;  South  Caro- 
lina (1873  R.  S.  482  §  3);  New  York  (1884  P.  L.  c.  3S1).  Such  statute  has 
been  held  in  Maine  not  to  be  retrospective,  Bryant  v.  Merrill,  55  Me.  515* 
(1868). 


COMMON    LAW    MODIFIED    BY    STATUTE.  405 

unmarried  woman,  except  as  to  accommodation  indorsements 
and  contracts  of  guaranty  and  suretyship.1  In  New  Hamp- 
shire and  Georgia  the  only  exceptions  to  her  power  to  make 
contracts  are  contracts  as  surety  or  guarantor  for  her  hus- 
band.3 In  Illinois  she  may  contract  as  an  unmarried  woman, 
but  cannot  make  a  partnership  contract  without  the  consent 
of  her  husband,  unless  he  has  deserted  her,  or  is  idiotic  or 
insane,  or  a  prisoner  in  the  penitentiary.3  In  North  Carolina 
she  is  only  enabled  to  contract  for  personal  necessaries,  or 
for  the  support  of  her  family,  or  for  the  payment  of  ante- 
nuptial debts,  unless  specially  licensed  and  registered  as  a  sole 
trader.4  In  Tennessee  the  wife's  separate  estate  is  by  statute 
made  liable  for  contracts  for  necessaries  for  herself  or  her 
minor  children.5  In  Connecticut  she  may  contract  "for  the 
benefit  of  herself,  her  family,  or  her  separate  or  joint  estate."6 
In  Mississippi  the  statute  formerly  made  a  wife's  separate 
estate  liable  on  contracts  by  herself  and  husband  or  either 
of  them  for  the  benefit  of  her  plantation,  or  by  the  wife 
alone,  or  by  the  husband  with  her  consent,  for  family  sup- 
plies, education,  carriage  and  horses,  and  for  the  improve- 
ment of  her  separate  estate.7     By  the  statute  now  in  force 

lNew  Jersey  (Act  of  1852 ;  1874  R.  S.  p.  637  §  5).  "  Nor  shall  she  be  liable 
on  any  promise-to  pay  the  debt  or  answer  for  the  default  or  liability  of  any 
other  person,"  lb.  It  follows  that  in  New  Jersey  a  married  woman  cannot 
bind  herself  as  surety  by  accepting  a  bill  of  exchange  for  the  debt  of  a  third 
person,  although  the  acceptance  may  afterward  come  to  the  hands  of  a 
bona  fide  holder,  Cooley  v.  Bancroft,  14  Vroom  363  (1SS1) ;  or  signing  or  in- 
dorsing an  accommodation  note,  Van  Kirk  v.  Skill  man,  5  Vroom  109  (1870) ; 
Perkins  v.  Elliott,  7  C.  E.  Green  127  (1871) ;  S.  C,  8  lb.  526;  Peake  v.  Labaw, 
6  lb.  269  (1871).  And  even  in  the  hands  of  a  bona  fide  holder  for  value  such 
an  instrument  would  not  be  binding  upon  her,  Cooley  v.  Bancroft,  supra. 

'New  Hampshire  (1878  G.  L.  435  I  12) ;  Georgia  (R.  G.  g  1783).  Thus  a  note 
given  in  Georgia  by  a  married  woman  for  property  purchased  by  her  is  valid 
and  will  sustain  an  action  at  law,  Davis  v.  Moorfield,  40  Ga.  185  (1869). 
But  a  wife's  note  given  for  a  debt  of  her  husband  is  not  binding  on  her  even 
in  the  hands  of  a  bona  fide  holder,  and  although  it  contains  a  recital  that  it 
was  given  for  advances  to  her,  March  v.  Clark,  9  Fed.  Rep.  753  (1882).  But 
see,  contra,  Perkins  v.  Rowland,  69  Ga.  661  (1882). 

3 Illinois  (1880  R.  S.  592  \  6). 

4 North  Carolina  (1873  Bat.  Rev.  590  |  17). 

''Tennessee  (1871  Comp.  S.  I  2486d). 

^Connecticut  (G.  S.  417  §  9).  But  a  joint  note  of  herself  and  husband  is 
not  presumptively  such  a  contract,  Way  v.  Peck,  47  Conn.  23  (1879). 

''Mississippi  (Code  of  1S57  c.  40  Art,  25;  1871  Rev.  Code  \  1780)  ;  Pendle- 
ton v.  Galbreath,  4-5  Miss.  43  (1871).     But  she  had  no  power  under  this  act 


406  CAPACITY MARRIED    WOMEN". 

all  disabilities  of  coverture  are  removed.1  In  Pennsylvania 
she  may  have  a  separate  estate  not  liable  for  her  husband's 
debts.  It  will  be  liable,  however,  for  family  supplies  neces- 
sarily purchased,  and  for  debts  contracted  by  herself.2 

In  Indiana  she  may  contract  as  an  unmarried  woman,  if 
her  husband  is  insane.3  So,  in  Tennessee,  if  her  husband 
is  found  insane  by  the  verdict  of  a  jury.4  In  Maine  she 
may  contract  as  an  unmarried  woman,  if  she  comes  from 
another  State  or  country  and  is  not  living  with  her  husband.5 
So,  in  Connecticut,  if  she  is  abandoned  by  her  husband,  her 
position  and  capacity  are  those  of  a  feme  sole.6  In  West 
Virginia  a  wife  living  separate  from  her  husband  has  the 
capacity  of  a  sole  trader.7  So,  in  North  Carolina,  if  living 
separate  under  a  decree  of  court  or  a  deed  of  separation.8 
So,  in  Pennsylvania,  as  far  as  the  disposition  of  her  property 

to  render  the  estate  of  a  minor  ward  liable,  McGavock  v.  Whitefeld,  45  Miss. 
452  (1871).  Nor  her  own  estate  leased  to  and  in  the  possession  of  her  hus- 
band, Grubbs  v.  Collins,  54  lb.  485  (1877).  In  equity  she  will  not  be 
allowed,  however,  to  retain  the  consideration,  e.  g.  land  purchased,  and 
avoid  the  note,  Hendrick  v.  Foote,  57  Miss.  117  (1879). 

1 1880  Rev.  Code  §1167. 

2 Pennsylvania  (Laws  of  1848  p.  536;  Purd.  Dig.  1872  p.  1005).  But  so  far 
as  relates  to  her  debts,  ante-nuptial  debts  onlv  are  intended  bv  this  act,  Ma- 
hon  v.  Gormley,  24  Penna.  St.  80  (1854) ;  Glydev.  Keister,  32  lb.  85;  Bear  v. 
Bear,  33  lb.  529. 

^Indiana  (1861  P.  L.  182).  But  where  the  husband  was  sane  the  wife's 
note  for  a  loan  to  her  was  held  to  be  void  although  a  collateral  mortgage 
made  by  herself  and  husband  was  held  to  be  valid,  Gregory  v.  Van  Voorst, 
85  Ind.  108  (1882).  On  the  other  hand,  the  note  of  both,  secured  by  her 
mortgage  on  land  conveyed  to  her,  and  in  consideration  of  said  conveyance, 
is  not  binding  on  her,  Martin  v.  Cauble,  72  lb.  67  (1880).  Nor  is  she  liable 
on  a  joint  note  given  with  another  as  surety  for  her  husband,  Daudistel  v. 
Bennighof,  71  lb.  389  (1880).  But  a  mortgage  as  surety  for  her  husband  con- 
taining a  covenant  to  pay  the  debt,  not  secu-red  by  a  note,  was  held  to  be 
valid  in  Sperry  v.  Dickinson,  82  lb.  132  (1SS2).  Under  the  Act  of  1879,  p. 
160,  and  no  longer  in  force,  a  married  woman  could  bind  herself  by  her 
note  given  for  personal  propertv  purchased  by  her,  Wulschner  v.  Sells,  87 
Ind.  71  (1882);  Rothschild  v.  Raab,  93  lb.  4^8  (1883);  or  for  money  bor- 
rowed to  carry  on  her  separate  business,  Wallace  v.  Rowley,  91  lb.  586 
(1883) ;  or  by  her  indorsement  of  a  note,  Mathers  v.  Shank,  94  lb.  501  (1883). 

Tennessee  (1871  Comp.  S.  g  2486). 

'"Maine  (1871  R.  S.  491  §  10). 

^Connecticut  (1875  G.  S.  187).  So,  in  North  Carolina  (1873  Bat.  Rev.  590  , 
24),  as  also  if  he  "  maliciously  turn  her  out  of  doors." 

''Wed  Virginia  (1879  R.  S.  c.  122  \  13).  And  a  joint  note  of  herself  and 
husband  for  a  debt  of  the  husband-  to  his  firm  would  be  binding  on  her 
separate  estate,  Dages  v.  Lee,  20  W.  Va.  584  (1882). 

sNorth  Carolina  (1873  Bat.  Rev.  590  \  23). 


CONTRACTS  AS  TO  SEPARATE  ESTATE.        407 

goes,  whenever  her  husband  "from  drunkenness,  profligacy, 
or  other  cause,  shall  neglect  or  refuse  to  provide  for  his  wife, 
or  shall  desert  her."1  In  Ohio  and  Vermont  the  statute 
enables  her  to  acquire  the  capacity  of  a  sole  trader  by  order 
of  the  court,  if  her  husband  "deserts  her,  or  from  intemper- 
ance or  other  cause  becomes  incapacitated,  or  neglects  to  pro- 
vide for  his  family."2  In  Kentucky  she  may  make  contracts 
and  convey  her  property  as  a  feme  sole  under  the  order  of 
the  court,  if  her  husband  abandons  her  or  fails  to  support 
her.3 

In  Kansas  she  may  carry  on  business  as  a  feme  sole  with 
all  the  liabilities  and  capacity  of  such.4  In  California  she 
may  become  a  sole  trader  by  judgment  of  the  court.5  In 
Michigan  and  some  other  States  she  may  be  relieved  alto- 
gether from  the  disabilities  of  coverture  by  order  of  court.6 

§  280.  Contracts  as  to  Separate  Estate — Statutes. — In 
Massachusetts,  New  York  and  some  other  States  she  has 
unrestricted  power  to  make  contracts  like  an  unmarried 
woman  as  to  her  separate  estate.7     In  Ohio  she  may  contract 

Pennsylvania  (1872  Pard.  Dig.  701  \  22). 

2Ohio  (1880  R.  S.  |  3111) ;  Vermont  (1880  R.  S.  §  2328).  So,  too,  in  Vermont, 
pending  the  husband's  confinement  in  the  State  prison  (g  2334). 

3Kentucku  (1881  G.  S.  520  \  5).  So,  in  case  of  abandonment  only,  in  Mis- 
souri (1879'R.  S.  I  3284). 

^Kansas  (1881  Comp.  L.  \  3139). 

^California  (1876  Civil  Code  \  11811).  But  her  note,  though  given  for  a 
consideration  in  itself  sufficient,  is  of  no  force  uidess  the  statutory  require- 
ments are  followed,  Belloc  v.  Davis,  38  Cal.  242  (1869). 

^Alabama  (1876  Code  §  2731);  Kentucky  (1881  G.  S.  521  §  6);  Michigan 
(1872  Comp.  L.  1474  \  4,  1477  \  25).  So,  in  Louisiana,  to  the  extent  of  bor- 
rowing money  and  contracting  and  securing  debts  for  her  separate  benefit 
and  advantage  (1876  RS.|  1713).  And  where  notes  are  given  in  accord- 
ance with  this  act,  the  burden  of  proof  does  not  lie  on  the  holder  to  show 
that  the  note  was  given  for  the  maker's  separate  benefit,  Miller  v.  Wisner, 
22  La.  An.  457  (1870).  Nor  can  the  maker  show  that  it  was  not  so,  in  con- 
tradiction of  her  judicial  admissions,  Feltus  v.  Blanchin,  2*',  lb.  401  (1874). 
Notes  exceeding  $1,500  must  be  authorized  by  a  district  judge,  those  l*elow 
that  sum  by  a  parish  judge,  Stuffier  v.  Puckett,  30  lb.  Sll  (1878). 

Santas  (18S1  Comp.  L.  g  3137) ;  Massachusetts  (1882  Pub.  Stats.  818  §  10) ; 
Neiv  York  (Laws  of  1860  c.  90  §  2 ;  Laws  of  1SS4  c.  381).  So,  in  Indiana, 
while  the  act  of  1879  remained  in  force  (1879  P.  L.  160  \  3).  So,  in  Rhode 
Island  (1S82  Pub.  Stats.  422  gg  4,  6),  where,  however,  the  joinder  of  the  hus- 
band is  required  to  affect  certain  enumerated  kinds  of  property.  The  New 
York  act  has  been  held  to  be  applicable  to  the  renewal  after  its  passage  of 
a  note  made  before  it  was  passed,  Barton  v.  Beer,  35  Barb.  78  (1861).     And 


408  CAPACITY MARRIED    WOMEN. 

for  the  benefit  of  her  separate  estate.1  In  Mississippi  her 
separate  estate  is  liable  for  her  ante-nuptial  debts,  but  her 
husband  is  not.2  In  Wisconsin  she  may  sue  and  be  sued  as 
to  her  separate  property.3  And  in  many  States  she  may 
convey  her  separate  property.4  But  in  Delaware,  as  well  as 
in  other  common  law  States  where  no  statutory  provision 
exists,  she  cannot  convey  her  separate  property  without  the 
co-operation  of  her  husband.5 

Many  States  now  provide  by  statute  for  the  acquiring  and 
holding  by  the  wife  of  separate  property  not  liable  for  the 
debts  of  her  husband,  according  to  the  principle  already  es- 
tablished in  equity.6  Thus,  in  Connecticut,  a  wife's  real  estate 
purchased  with  her  own  earnings  is  made  her  separate  prop- 
she  will  be  liable  to  an  accommodation  indorser  on  a  note  given  for  her 
separate  estate  or  business,  although  the  money  was  not  applied  to  it,  Scott 
v.  Otis,  25  Hun  33  (1881).  But  in  a  note  payable  to  her  husband  and  dis- 
counted for  him,  there  is  no  presumption,  even  from  her  having  a  separate 
estate,  that  the  note  was  given  for  the  benefit  of  such  estate,  but  this  fact 
must  be  proved,  Saratoga  Co.  Bank  v.  Pruyn,  90  N.  Y.  250  (1882).  And  her 
separate  estate  in  a  life  insurance  policy  will  not  be  bound  by  a  note 
given  jointly  with  her  husband,  although  he  represented  it  as  liable,  Bloom- 
ingdale  v.  Lisberger,  24  Hun  355  (1881).  So  sbe  may  make  contracts  in  re- 
lation to  her  separate  estate  in  New  Hampshire  (1812  R.  S.  p.  296 ;  1878  G. 
L.  p.  435).  But  money  borrowed  by  her  for  the  purpose  of  purchasing  a 
separate  estate  is  not  sufficient  to  make  a  note  given  by  her  for  such  loan 
binding  on  her  estate,  Ames  v.  Foster,  42  N.  H.  381  (1861). 

lOhio  (1880  R.  S.  g  3108).  And  an  intention  to  bind  her  separate  estate  by 
a  note  given  as  surety  for  her  husband,  will  be  presumed  from  her  having 
such  estate,  Hershizer  v.  Florence,  39  Ohio  St.  516  (1883). 

'Mississippi  (1857  Code  c.  40  Art.  25;  1871  Rev.  Code  g  1780). 

3 ■•Wisconsin  (1878  R.  S.  g  2345). 

'Illinois  (1880  R.  S.  592  g  9) ;  Iowa  (1880  McClain's  Stats.  g  2202) ;  Kansas 
(1881  Comp.  L.  g  3137) ;  Maryland  (1878  Rev.  Code  482  g  23) ;  Massachusetts 
(1882  Pub.  Stats.  818  g  1) ;  Maine  (1871  R.  S.  491  g  1) ;  South  Carolina  (1873 
R.  S.  482  |  2) ;    Wisconsin  (1878  R.  S.  g  2342). 

h  Delaware  (1874  Rev.  Code  478). 

6 Alabama  (1876  Code  g  2705) ;  California  (1876  Code  Civ.  g  5162) ;  Delaware 
(1874  Rev.  Code  478);  Indiana  (1879  P.  L.  160);  Iowa  (McClain's  Stats. 
g  2202) ;  Kansas  (1881  Cowp.  L.  g  3136) ;  Maryland  (1878  Rev.  Code  482  \  20)  ; 
Massachusetts  (1859  G.  S.  c.  108) ;  Michigan  (1872  Com.  L.  p.  1477  g  25)  ;  Min- 
nesota (1878  Stats.  769  g  1);  Missouri  (1879  R.  S.  g  3296);  New  Hampshire 
(1878  G.  L.  434  g  1) ;  New  Jersey  (Act  of  1852 ;  1874  R.  S.  636  g  1) ;  New  York 
(1848  P.  L.  307;  1849  P.  L.  528);  Pennsylvania  (1848  P.  L.  536;  1S72  Purd. 
Dig.  1005).  And  property  acquired  by  her  while  deserted  by  her  husband, 
is  her  separate  property  in  Pennsylvania,  Starrett  v  Wynn,  17  Serg.  &  R. 
130  (1827).  But  a  note  made  to  the  wife  at  the  husband's  request,  and  for 
a  consideration  proceeding  from  him,  is  within  the  exception  of  the  Massa- 
chusetts act  as  to  gifts  from  husband  to  wife,  Towle  v.  Towle,  114  Mass.  167 
(1873). 


FOREIGN    STATUTES.  409 

■erty  by  statute.1  And,  in  Missouri,  while  her  husband  fails 
to  support  her,  her  earnings  are  her  separate  property.2  A 
more  comprehensive  and  detailed  statement  of  these  and 
similar  statutes  is  to  be  sought  rather  in  works  relating  to  the 
special  subject.  Cases  based  on  the  recent  statutes,  how- 
ever, and  illustrating  the  change  in  this  branch  of  the  law, 
which  has  now  become  largely  statutory,  have  been  freely 
cited  throughout  this  chapter. 

§  281.  Foreign  Statutes — Lex  Loci. — By  the  English  stat- 
ute of  1870,  a  wife's  earnings,  her  distributive  share  of  prop- 
erty received  under  the  intestate  laws,  and  legacies  and  gifts 
to  her  up  to  the  amount  of  £200,  are  her  separate  property.3 
And  by  the  Act  of  1874  the  husband  is  now  liable  in  Eng- 
land for  his  wife's  debts  and  torts  while  sole,  only  so  far  as 
he  has  received  assets  from  her.4 

By  foreign  law,  as  a  rule,  a  wife's  capacity  to  make,  accept 
•or  indorse  commercial  paper  is  in  general  the  same  as  that 
of  an  unmarried  woman.  By  the  German  Exchange  Law 
she  has  power  to  make  bills  of  exchange.6  In  Hungary 
no  women  are  competent  to  make  bills  or  notes  unless 
registered  as  merchants.6  In  France  and  other  countries 
governed  by  the  Code  Napoleon  a  woman's  commercial 
paper  amounts  only  to  an  acknowledgment  of  indebted- 
ness, unless  she  is  engaged  in  trade.7     In  Russia  all  women, 

^Connecticut  (1875  G.  S.  186). 

Hlissouri  (1879  R.  S.  §  3286). 

s33  and  34  Vict.  c.  93.  In  Upper  Canada,  by  the  act  of  1872,  she  may 
bind  her  separate  estate  by  a  note  or  indorsement  given  for  the  accommo- 
dation of  her  husband,  Frazee  v.  McFarland,  43  U.  C.  Q.  B.  281  (1878),  espe- 
cially if  reference  be  made  in  the  note  to  such  estate,  Consolidated  Bank  v. 
Henderson,  29  U.  C.  C.  P.  549  (1879). 

437  and  38  Vict.  C.  50,  repealing  33  and  34  Vict.  c.  93  §  12,  which  had  re- 
leased the  husband  from  all  liability  for  such  debts.  These  acts  applied  in 
terms  only  to  marriages  taking  effect  after  their  passage,  viz.,  August  9th, 
1870,  and  July  30th,  1874,  respectively. 

5Thol's  Wechselrecht  106.  This  is  subject  to  local  restrictions  requiring 
consent  or  co-operation  of  the  husband. 

^Hungary  (Exch.  Law  1861  Art.  9). 

'France  (Code  Napoleon  1807  Art.  113)  ;  Greece  (1835  Code  Com.  Art.  113) ; 
Hayti  (1826  Code  Com.  Art.  Ill) ;  Italy  (1865  Code  Com.  Art.  199) ;  Monaco 
(1818  Code  Com.  Art,  103);  Roumania  (1840  Code  Com.);  Venezuela  (1862 
^Code  Com.  Art.  S)  ;  San  Domingo  (1844  Code  Napoleon  Art.  113). 


410  CAPACITY— MARRIED    WOMEN. 

except  those  engaged  in  trade,  are  incompetent  to  make  bills 
of  exchange  or  notes,  without  the  consent  of  husband  or 
parents.1  And  in  Servia  commercial  paper  signed  by  a 
woman,  without  the  consent  of  husband  or  parent  in  the 
manner  prescribed  by  law,  is  a  mere  acknowledgment  of 
debt.2  In  the  Argentine  Republic  the  husband  acquires 
by  marriage  the  right  to  indorse  bills  of  exchange  drawn 
payable  to  his  wife  before  marriage.3  It  will  be  observed 
that  the  foregoing  statutes  make  no  distinction  between  mar- 
ried and  unmarried  women.  This  was  also  the  case,  in 
great  degree,  with  the  Roman  law,  from  which  they  are  in 
part  derived. 

What  law  governs  a  bill  of  exchange  or  promissory  note 
in  this  respect  is  considered  properly  and  more  fully  in 
another  part  of  this  work.  It  has  been  held  in  Mississippi 
that  a  married,  woman's  note,  made  in  Tennessee  to  an  agent 
in  Mississippi  for  supplies  for  the  maker's  plantation  in 
Mississippi,  is  enforcible  there,  although  void  in  Tennessee.* 
On  the  other  hand,  Mississippi  courts  have  refused  to  enforce 
a  note  made  in  Louisiana  by  a  husband  and  wife  residing 
in  Mississippi,  although  the  statute  of  Louisiana,  which  was 
strictly  construed  as  contrary  to  the  common  law,  allowed  a 
wife's  note.5 

§  282.  Common  Law  Liability  on  Bills  and  Notes — Estop- 
pel.— By  the  English  common  law,  and  wherever  it  is  in 
force  without  statutory  modification,  the  bill  of  exchange, 
promissory  note,  or  check  of  a  married  woman  is  legally 
void  ;6  although  in  England  a  married  woman  has  been  held 

yRusda  (1S62  Exch.  Law  Art.  546). 

^Service  (1860  Code  Com.  Arts.  76-78). 

3 Argentine  Republic  (Code  Com.  1862  Art.  807). 

4Shacklett  v.  Polk,  51  Miss.  378  (1875).  This  is  an  apparent  exception  to 
the  general  rule  that  the  law  of  the  place  of  contract  governs. 

5Bank  of  Louisiana  v.  Williams,  46  Miss.  618  (1872).  The  statutory  au- 
thority in  Louisiana  was  contained  in  the  charter  of  the  hank  to  which  the 
note  was  given. 

6Byles  65;  1  Daniel  238;  Robertson  v.  Bruner,  24  Miss.  242  (1852);  Van 
Steenhurgh  v.  Hoffman,  15  Barb.  28  (1853);  Bloomingdale  v.  Lisberger,  24 
Hun  355  (1881);  Griffith  v.  Clark,  18  Md.  457  (1862);  Kenton  Ins.  Co.  «t 


EFFECT    OF    RECENT   STATUTES.  411 

liable  to  arrest,  as  if  sole,  as  the  drawer  of  a  bill  of  exchange.1 
But  a  married  woman  cannot  be  estopped  from  setting  up 
the  disability  of  coverture  by  reason  of  having  signed  a  note 
as  "A.  B.,  widow."2  Nor  will  she  be  estopped  by  reason  of  her 
fraud  or  false  representation,  where  she  has  executed  a  deed 
in  her  maiden  name.3  This  is  true  also  of  a  judgment  bond.* 
§  283.  Recent  Statutes  as  Affecting  a  Wife's  Bill  or  Note. — 
In  New  York,  under  the  Acts  of  1860  and  1861,  an  accom- 
modation note  made  by  a  married  woman  is  void.5  In 
Mississippi,  under  the  present  statute,  the  wife's  separate 
estate  is  not  liable  for  the  payment  of  a  note  made  jointly 
with  her  husband,  unless  made  by  her  in  the  course  of  her 
separate  business  or  charging  the  separate  estate.6  In  Arkan- 
sas a  married  woman's  note  or  bill  of  exchange,  not  given  for 
her  personal  benefit  or  for  that  of  her  separate  property,  is- 
void.7  In  Pennsylvania  it  is  held  that  the  incapacity  of  a 
married  woman  is  not  changed  by  the  statute  of  1848,  except 
as  to  ante-nuptial  debts  and  those  contracted  in  the  manage- 
ment of  her  separate  property  or  for  the  purchase  of  family 

McClellan,  43  Mich.  564  (1880) ;  Reed  v.  Buys,  44  lb.  80  (1880) ;  Howe  v. 
Wildes,  34  Me.  566  (1852);  Mahon  v.  Gormlev,  24  Penna.  St.  80  (1854); 
Snow  v.  Mather,  52  Tex.  650  (18801 ;  Hodges  v.  Price,  18  Fla.  342  (1881) ;  Pip- 
pen  v.  Wesson,  74  N.  C.  437  (1876);  Goodhue  v.  Barnwell,  Rice  Eq.  198 
(1838) ;  Phillips  v.  Hagadorn,  12  How.  Pr.  17  (1855) ;  Simpers  v.  Sloan,  5  Cal. 
457  (1855) ;  Bryant  v.  Merrill,  55  Me.  515  (1868),  until  Me.  Stat.  1866  c.  52  ; 
Higgins  v.  Wiflis,  35  Ind.  3T1  (1871),  until  Act  of  1S79  (P.  L.  160) ;  Wooden 
r.  Wampler,  69  Ind.  88  (1879);  Thomas  v.  Passage,  54  lh.  106;  Williams  v. 
Wilber,  67  lb.  42;  Daudistel  v.  Bennighof,  71  lb.  3S9  (1880),  the  note  in  this 
case  having  been  made  in  1869;  Fry  v.  Hamner,  50  Ala.  52  (1873) ;  Davis  v. 
Fry,  7  Sm.  &  M.  64  (1S46).  This  case  held  that  the  Act  of  1S39  (Laws  of 
1839  p.  72)  simply  gave  a  married  woman  the  right  to  acquire  and  hold 
separate  property,  and  did  not  change  the  common  law  rule  as  to  her  want 
of  power  to  make  contracts.  Complete  power  is,  however,  now  given  by 
statute  (1880  R.  C.  \  1167). 

'Junes  v.  Lewis,  7  Taunt.  54  (1816) ;  S.  C,  2  Marsh.  385. 

2Cannam  v.  Farmer,  3  Exch.  698  (1849).  So,  a  recital  that  the  note  was 
given  for  advances  to  her  will  not  estop  her  from  showing  that  it  was  for 
the  accommodation  of  her  husband  and  therefore  void,  March  v  Clark,  9" 
Fed.  Rep.  753  (1882) ;  and  parol  evidence  is  admissible  to  show  the  undis- 
closed coverture  of  the  maker  of  a  note,  Mount  v.  Zisken,  7  N.  J.  Law  J.  71. 

3 Lowell  v.  Daniels,  2  Gray  161  (185*4). 

*Keen  v.  Coleman,  39  Penna.  St.  299  (1861). 

5Scudder  v.  Gori,  3  Robt.  661  (1864) ;  S.  C,  18  Abb.  Pr.  223. 

"Nelson  v.  Miller,  52  Miss.  410  (1876) ;  Miss.  Code  1871  §  1780. 

TConner  v.  Abbott,  35  Ark.  365  (1880). 


412  CAPACITY MAERIED    WOMEN. 

necessaries.  And  other  contracts  by  her  in  the  form  of  com- 
mercial paper  or  otherwise  are  invalid.1  In  California  the 
wife  is  held  not  to  be  personally  liable  on  a  joint  note  and 
mortgage  security  made  by  herself  and  husband.2  In  New 
York  the  Act  of  1848,  it  is  held,  did  not  render  a  married 
woman  liable  for  goods  purchased  by  her  merely  because 
she  had  a  separate  estate.3  But  under  the  law  of  New  York, 
as  it  now  is,  a  married  woman  having  a  separate  estate  is  lia- 
ble on  her  note  given  for  the  purchase  of  a  sewing  machine  ;4 
but  not  on  a  note  for  goods  purchased  for  the  family,  not- 
withstanding her  promise  of  payment  in  the  latter  case,  made 
after  her  husband's  death.6  In  Louisiana  a  married  woman's 
note,  authorized  by  her  husband  and  given  for  the  support 
of  the  family,  is  binding.6  But  she  is  not  liable  on  the  joint 
note  of  herself  and  husband,  notwithstanding  that  property 
acquired  after  marriage  is  held  by  them  in  community.7  In 
Mississippi  it  has  been  held  that  a  married  woman's  note 
given  for  slaves  purchased  on  credit  was  not  binding  upon 
her;8  although  a  surety  on  such  a  note  would  still  be  liable.9 
And  in  Texas  a  woman  has  been  held  as  maker  on  such  a 
note  given  jointly  with  her  supposed  husband.10 

§  284.  Commercial  Paper  for  Property  Purchased — Money 
Borrowed. — A  wife's  note  given  for  land  conveyed  to  her  is 
not  binding  upon  her  at  common  law.11    Nor  is  her  separate 

^lahon  v.  Gormley,  24  Penna.  St.  80  (1854). 

2 Brown  v.  On;  29  Cal.  120  (1865). 

3Bass  v.  Bean,  16  How.  Pr.  93  (1858);  Arnold  v.  Ringold,  lb.  158.  This 
act  and  the  N.  Y.  Act  of  1849  confer  no  new  capacity  to  contract  with  per- 
sonal liability,  Switzer  v.  Valentine,  4  Duer  96  (1851). 

*  Williamson  v.  Dodge,  5  Hun  497  (1875). 

6Smith  v.  Allen,  1  Lans.  101  (1869). 

8Fenn  v.  Holmes,  6  La.  An.  199  (1851) ;  La.  C.  C.  I  2409. 

'Wiley  v.  Hunter,  2  La.  An.  806  (1847). 

8 Pollen  v.  James,  45  Miss.  129  (1871);;  Whitworth  v:_Carter,  43  lb.  61  (1870). 

9  Whitworth  v.  Carter,  supra. 

10  George  v.  Stevens,  31  Tex.  670  (1869). 

11  Howe  v.  Wildes,  34  Me.  566  (1852) ;  Dunning  v.  Pike,  46  Me.  461  (1859) ; 
•Carpenter  v.  Mitchell,  50  111.  470  (1869) ;  Pemberton  v.  Johnson,  46  Mo.  342 
(1870)  ;  Dollner  v.  Snow,  16  Fla.  86  (1878).  So,  in  Texas  a  note  by  husband 
and  wife  for  annuity  property  is  voidable  by  the  wife  or  her  administrator, 
Snow  v.  Mather,  52  Tex.  650  (1880). 


COMMERCIAL  PAPER  FOR  PROPERTY  PURCHASED.   413 

estate  liable  on  a  note  given  for  such  consideration  jointly 
with  her  husband,  unless  it  is  expressly  charged.1  And  such 
a  note  by  husband  and  wife  has  been  held  to  be  the  contract 
of  the  husband  alone.2  So,  where  a  wife  is  living  with  her 
husband,  her  note  for  goods  purchased  by  her  for  household 
supplies  is  void,  although  she  may  have  promised  after  her 
husband's  death  to  pay  them.3  It  has,  however,  been  often 
held,  as  we  shall  see,  that  an  intention  to  charge  her  separate 
estate  or  the  fact  of  a  separate  benefit  to  her  estate  may  be 
presumed  from  her  mere  act  in  making  the  purchase.  But 
it  has  been  held  in  Louisiana  that  her  note,  made  without 
authorization  of  her  husband,  for  property  bought  by  her 
during  marriage,  where  there  is  no  proof  that  the  property 
enured  to  her  separate  benefit,  or  that  she  was  administering 
her  paraphernalia,  or  even  had  any  separate  property,  can- 
not render  her  liable.4  Where,  however,  a  note  given  by 
her  for  the  purchase  of  land  is  void,  as  has  been  said,  and 
she  does  not  elect  to  pay  for  the  land,  it  may  be  subjected  to 
a  sale  to  satisfy  the  vendor's  lien.5  And  a  court  of  equity 
would  in  no  case  permit  her  to  retain  the  land  or  other  prop- 
erty purchased  and  disclaim  all  liability  to  pay  for  it.6 

A  wife  cannot  at  common  law  bind  herself  by  joint  note 
with  her  husband  for  money  received  by  her.7  Nor  is  she 
liable  on  her  note  for  money  borrowed  for  the  purchase 
of  a  piece  of  land.8  Nor  on  the  joint  note  of  herself  and 
husband  for  such  consideration,  where  there  is  no  proof  that 
the  money  was  applied  to  her  use  and  benefit  or  the  benefit 
of  her  separate  estate.9     So,  she  is  not  liable  on  such  joint 

'Kimm  v.  Weippert,  46  Mo.  532  (1872). 

2 Doyle  v.  Orr,  51  Miss.  229  (1875). 

'Smith  v.  Allen,  1  Lans.  101  (1869). 

4Graham  v.  Thayer,  29  La.  An.  75  (1877). 

'Johnson  v.  Jones,  51  Miss.  860  (1876);  McDuff  v.  Beauchamp,  50  Miss. 
531  (1874) ;  Nicholson  v.  Heiderhoff,  5©  Miss.  56  (1874) ;  Gordon  v.  Manning, 
44  Miss.  757  (1870) ;  Farr  v.  Wright,  27  Tex.  96  (1863). 

6Hendrick  v.  Foote,  57  Miss.  117  (1879). 

'Thatcher  v.  Cannon,  6  Bush  541  (1869). 

8Riley  v.  Pierce,  50  Ala.  93  (1873). 

"Stokes  v.  Shannon,  55  Miss.  583  (1878);  Conrad  v.  Le  Blanc,  29  La.  An. 
123  (1877).     Such  a  note,  to  be  blading  on  the  wife,  requires  a  separate  con- 


414  CAPACITY MARRIED    WOMEN. 

Dote  reciting  that  it  was  given  for  money  loaned  to  her  for 
the  purpose  of  purchasing  family  supplies  and  necessaries, 
especially  where  the  money  was  not  shown  to  have  been  actu- 
ally so  used.1 

And  it  has  even  been  held  in  Louisiana  that  a  wife  could 
not  be  held  liable  after  her  husband's  death  on  their  joint 
note  given  during  their  marriage  for  the  purchase  of  land, 
which  stood  in  the  wife's  name  but  was  really  community 
property.2  So,  the  wife's  separate  estate  is  not  liable  for  a 
note  made  by  her  jointly  with  her  husband  for  the  tuition 
and  board  of  their  daughter.3 

§  285.  In  New  York,  since  the  statutes  of  1860  and  1861, 
a  married  woman  may  contract  as  if  she  were  unmarried.^ 
And  she  may  give  a  valid  note  for  her  release  from  a  con- 
tract for  the  sale  of  a  farm.5  So,  her  note  given  in  part  for 
goods  purchased  by  her  is  so  far  valid,  although  partly  given 
for  a  debt  of  her  husband  and  to  that  extent  invalid.6  The 
common  law  presumption  that  a  married  woman's  note  is  in- 
valid still  prevails  in  New  York,  and  the  holder  of  such  note 
must  show  that  it  was  given  by  her  as  a  sole  trader,  or  for 
her  separate  benefit,  or  on  the  credit  of  her  separate  estate.7 
And  where  she  transacts  business  through  her  husband  as 
agent,  a  note  made  by  her  husband,  in  her  name  but  not  in 
her  business  or  for  her  separate  benefit,  will  not  be  binding 
upon  her,  although  it  had  been  represented  by  the  husband 

sideration  to  her,  and  no  consideration  between  herself  and  husband,  will 
be  sufficient  to  bind  her,  Reed  v.  Buys,  44  Mich.  80  (1880).  So,  a  joint  note 
given  by  husband  and  wife  to  pay  a  judgment  entered  against  botb,  is  not 
binding  on  her,  she  being  ignorant  of  tbe  purpose  for  which  it  was  given 
and  receiving  no  separate  consideration  for  it,  Schlattner  v.  Nickodemus,  51 
lb.  626  (1883).  So,  too,  her  individual  note  requires  a  separate  consideration 
to  her  which  will  not  be  presumed,  Kenton  Ins.  Co.  v.  McCl-ellan,  43  lb. 
564  (1880). 

1  Viser  v.  Scruggs,  49  Miss.  705  (1874) ;  Sharp  v.  Proctor,  5  Bush  396  (1869) ; 
Gatewood  v.  Bryan,  7  Bush  509  (1870) ;  Hutchinson  v.  Underwood,  27  Tex. 
255  (1863)  ;  McMahon  v.  Lewis,  4  Bush  138  (1868). 

"Millandon  v.  Carson,  25  La.  An.  380  (1873). 

3 Collins  v.  Underwood,  33  Ark.  265  (1878). 

♦Foster  v.  Conger,  61  Barb.  145  (1871). 

5Willsey  v.  Hutchins,  10  Hun  502  (1877). 

'Spencer  v.  Humiston,  9  Hun  71  (1876). 

7Hallock  v.  De  Mum,  2  Thomp.  &  C.  350  (1873). 


COMMERCIAL    PAPER    FOR    PROPERTY    PURCHASED.      415 

to  be  in  her  business  and  for  her  benefit  and  had  come  to  the 
hands  of  a  bona  fide  owner  for  value.1 

Since  the  recent  statutes  above  referred  to  a  married 
woman  is  liable  in  Massachusetts  on  her  acceptance  of  a 
bill  of  exchange  given  in  consideration  of  debts  due  from 
her  to  the  drawer.2  And  it  has  been  held  in  Texas,  in 
apparent  disregard  of  the  common  law  presumption,  that  the 
holder  of  a  married  woman's  note  is,  without  proof  of  its 
consideration,  such  a  creditor  as  to  entitle  him  to  letters  of 
administration  on  her  estate.3  In  Massachusetts  it  has  been 
held  that  a  married  woman's  note  given  for  money  loaned 
her  is  now  binding  upon  her,  although  the  money  was  bor- 
rowed with  the  intention  of  using  it  to  assist  her  husband 
and  this  was  known  to  the  lender.*  So  she  has  been  held 
liable  on  a  partnership  note,  as  a  member  of  the  firm,  her 
husband  not  being  a  member.5  This  has  also  been  held  to  be 
the  existing  law  in  New  Jersey.6  In  Mississippi  a  married 
woman  is  liable  upon  a  note  made  by  her  before  marriage 
for  debts  contracted  at  the  time.7  And  in  New  Hampshire 
it  has  been  held  that  a  woman  is  liable  upon  her  note  made 
after  marriage  in  renewal  of  an  earlier  note  made  while 
unmarried.8 

§  286.  In  New  York  a  married  woman  having  separate 
property  is  liable  for  a  note  given  by  her  for  a  sewing  machine 
purchased  by  her  in  the  presence  of  her  husband,  he  refusing 
to  have  anythiug  to  do  with  it  and  she  promising  to  pay  for 
it.9  In  Massachusetts  her  note  given  for  real  estate  purchased 
for  her  separate  property  is  now  binding  on  her.10  So,  in 
Ohio,  a  joint  note  of  husband  and  wife  for  real  estate  pur- 

lBogert  v.  Gulick,  65  Barb.  322  (1873) ;  S.  0.,  45  How.  Pr.  385. 

2 Pierce  v.  Kittredge,  115  Mass.  374  (1874). 

•Nickelson  v.  Ingram,  24  Tex.  630  (1860). 

♦Wilder  v.  Richie,  117  Mass.  382  (1875). 

'Plumer  v.  Lord,  5  Allen  460  (1862). 

•Merritt  ads.  Day,  9  Vroora  32  (1875). 

'Travis  v.  Willis,  55  Miss.  557  (1878). 

•Shannon  v.  Canney,  44  N.  H.  592  (1863). 

'Williamson  v.  Dodge,  5  Hun  497  (1875). 

,0Estabrook  v.  Earle,  97  Mass.  302  (1867). 


416  CAPACITY — MARRIED  WOMEN. 

chased  and  put  in  her  name,  the  husband  having  become 
insolvent.1  So,  in  Massachusetts,  her  note  for  work  done  on 
lands  held  by  herself  and  her  husband  as  tenants  in  com- 
mon.2 In  Mississippi,  where  she  gives  notes  partly  for  sup- 
plies for  her  plantation  and  in  part  for  her  husband's  debts, 
and  secures  them  by  mortgage  on  her  land,  her  estate  will  be 
liable  to  the  extent  of  the  supplies  furnished  and  the  income 
of  her  land  will  be  liable  for  the  husband's  debts  secured.3 
And  in  West  Virginia  in  an  attempt  to  enforce  the  joint 
bond  of  a  husband  and  wife  against  the  wife's  land,  it  was 
held  that  she  might  act  as  a  feme  sole  in  respect  to  all  her 
personal  estate  and  to  the  rents  and  profits  of  her  real  estate.4 

In  Louisiana  she  may  make  a  valid  note  by  authorization 
of  her  husband  or  by  order  of  court.5  But  where  she  has 
executed  such  note  under  authority  of  the  court,  she  may  set 
up  in  defense  that  the  note  was  obtained  by  fraud  and  was 
given  for  her  husband's  debt.6  And  she  may  even  prove  by 
parol  in  such  case  that  no  money  was  actually  borrowed  by 
her  and  that  the  whole  consideration  was  the  debt  of  her 
husband.7 

§  287.  Extent  of  Incapacity — Pleading. — Where  husband 
and  wife  have  executed  a  joint  note  on  which  the  wife  is 
liable,  their  subsequent  divorce  will  not  relieve  her  from  lia- 
bility.8 If,  however,  a  married  woman's  note  is  utterly  void, 
although  in  its  form  negotiable  and  in  compliance  with  mer- 
cantile law,  it  will  not  operate  as  payment  of  a  valid  debt 
for  which  it  was  given.9     On  the  other  hand,  although  such 

'Avery  v.  Vansickel,  35  Ohio  St.  270  (1879). 

•Burr  v.  Swan,  118  Mass.  588  (1875). 

"Dibrell  v.  Carlisle,  48  Miss.  691  (1873). 

'Radford  v.  Canvile,  13  W.  Va.  573  (1878). 

5  Bank  of  Lafayette  v.  Bruff,  33  La.  An.  624  (1881).  And  a  note  made 
after  the  husband's  death  by  an  attorney  acting  under  the  joint  power  of 
attorney  of  husband  and  wife,  made  during  coverture  with  the  required  au- 
thorization of  a  judge,  is  not  binding  on  her  without  separate  benefit  or 
ratification  by  her,  Calhoun  v.  Mechanics'  Bank,  30  La.  An.  772  (1878). 

6Barth  v.  Kaso,  30  La.  An.  940  (1878). 

7  Hall  v.  Wyche,  31  La.  An.  734  (1879). 

"Schaeffer  v.  Ivory,  7  Mo.  App.  461  (1S79).  But  see  Hooton  v.  Ransom, 
6  lb.  19  (1878). 

'Luttle  v.  American,  &c,  Sewing  Machine  Co.,  67  Ind.  67  (1879). 


INDORSEMENT    BY    MARRIED   WOMAN.  417 

note  may  be  void  at  law,  a  mortgage  by  the  wife  of  her  sepa- 
rate estate  given  to  secure  it  may  be  valid.1 

And  it  has  been  held  that  a  married  woman's  note  is  not 
per  se  void  and  subject  to  be  disposed  of  as  such  on  demurrer, 
but  the  disability  must  be  pleaded  as  a  defense.2  And  where 
she  has  failed  to  plead  it,  a  motion  in  arrest  of  judgment  will 
not  be  sustained  as  to  her  separate  property,  (although  it  might 
be  sustained  as  to  community  property)  the  declaration  on  the 
note  not  having  averred  that  she  was  a  married  woman.3 
Where  one  of  several  makers  of  a  joint  note  pleads  her 
coverture,  it  has  been  held  that  the  plaintiff  may  discontinue 
as  to  her  and  proceed  against  the  others.4  And  where  the 
declaration  or  petition  contains  no  averment  of  separate 
benefit  or  that  the  note  was  given  for  necessaries,  it  seems 
that  a  judgment  rendered  against  her  by  default  may  be 
opened,  the  note  in  this  case  being  a  joint  one  of  husband 
and  wife.6 

§  288.  Indorsement  by  Married  Woman. — At  common  law 
a  married  woman  is  not  liable  upon  her  indorsement  of  a 
bill  of  exchange  or  note.6  And  many  American  statutes, 
which  provide  for  the  separate  property  of  the  wife,  give  her 
no  separate  power  of  disposal.  This  is  the  case  in  New  Jer- 
sey with  the  Married  Woman's  Act  of  1852.7  But  under 
recent  statutes  a  married  woman  having  a  separate  estate  is 
generally  liable  upon  her  indorsement.8 

At  common  law  her  indorsement  did  not  even  effect  a 
transfer  of  the  paper.9     And  this  is  still  so  in  some  States, 

'Brookings  v.  White,  49  Me.  479  (1862). 

'Hughes  v.  Brown,  3  Bush  660  (1868). 

"Phelps  v.  Brackett,  24  Tex.  236  (1859). 

4Shipman  v.  Allee,  29  Tex.  17  (1867). 

'Trimble  v.  Miller,  24  Tex.  214  (1859) ;  Covington  v.  Burleson,  28  lb.  368 
(1866) ;  even  though  entered  by  consent,  Bullock  v.  Hayter,  24  Tex.  9 
(1859).  J 

6  Barlow  v.  Bishop,  3  Esp.  266 ;  S.  C,  1  East  432. 

7Naylor  v.  Field,  5  Dutch.  287  (1861) ;  Vreeland  v.  Schoonmaker,  1  C.  E. 
Green  512  (1863);  Belford  v.  Crane,  lb.  265;  Vreeland  v.  Ryno,  11  lb.  160 

(1875).  J      ' 

'Frank  v.  Lilienfeld,  33  Gratt.  377  (1880). 

•Barlow  v.  Bishop,  1  East  432;  S.  C,  3  Esp.  266;  Tillinghast  v.  Holbrook, 

2b 


418  CAPACITY MARRIED    WOMEN. 

if  the  indorsement  be  made  without  the  husband's  consent.1 
In  other  States  an  indorsement,  made  by  the  wife  after  her 
marriage  to  confirm  her  previous  transfer  of  a  note  by  de- 
livery, passes  a  perfect  legal  title.2  And  in  New  York, 
before  the  act  of  1848,  a  wife  might  indorse  in  her  maiden 
name  a  note  made  to  her  before  marriage,  if  the  authority 
of  her  husband  could  be  inferred  from  her  being;  a  sole 
trader  or  from  other  circumstances.3  And  it  seems  that  even 
where  a  married  woman's  indorsement  does  not  render  her 
personally  liable,  it  may  still  be  sufficient  to  effect  a  valid 
transfer.4  And  an  indorsement  by  the  wife,  of  a  note  made 
to  her  for  property  purchased  from  her  husband,  would  put 
the  note  out  of  reach  of  an  attachment  at  suit  of  the  hus- 
band's creditors.5  So,  a  wife  may  with  the  consent  of  her 
husband  make  a  good  equitable  assignment  by  delivery  of  a 
note  and  mortgage  executed  to  her.6  And  where  a  bill  or 
note  is  made  payable  to  a  married  woman,  her  indorsement 
with  the  authority  or  consent  of  her  husband  effects  a  valid 
transfer  at  common  law;7  especially  if  the  husband  be 
present  when  the  transfer  is  made.8 

And  where  she  has  indorsed  and  transferred  a  note  made 
to  her,  payment  may  be  made  to  the  holder  until  her  pre- 
sumed authority  is  revoked.9  The  husband's  authority  to 
his  wife  to  indorse  such  a  note  may  be  presumed  from  his 
conduct  or  from  a  subsequent  ratification  of  her  act.10    So, 

7  R.  I.  230  (1862).  But  such  indorsement  effects  a  sufficient  transfer  in  Mis- 
sissippi, Harding  v.  Cobb,  47  Miss.  599  (1873). 

'Hemmingway  v.  Matthews,  10  Tex.  207  (1853). 

2Guptill  v.  Home,  63  Me.  405  (1874). 

3Miller  v.  Delarnater,  12  Wend.  433  (1834). 

*Moreau  v.  Branson,  37  Ind.  195  (1871). 

5  Way  v.  Pierce,  51  Vt.  326  (1878). 

6 Baker  v.  Armstrong,  57  Ind.  189  (1877). 

TPrestwick  v.  Marshall,  4  C.  &  P.  591;  S.  C,  7  Bing.  565;  Smith  v.  Mar- 
sack,  6  C.  B.  486;  Stevens  v.  Beals,  10  Cush.  291  (1852) ;  Mudge  v.  Bullock, 
83  111.  22  (1876) ;  McClain  v.  Weidemever,  25  Mo.  364  (1857) ;  Nimes  v.  Bige- 
low,  45  N.  H.  313  (1864). 

"Menkens  v.  Heringhi,  17  Mo.  297  (1852). 

•George  v.  Cutting,  46  K  H.  130  (1865). 

"Prince  v.  Brunatte,  1  Bing.  N.  C.  435;  Mudge  v.  Bullock,  83  111.  22  (1876). 


CONTRACTS    AS    SUEETY.  419 

his  consent  may  be  presumed,  where  the  note  in  question 
has  been  given  to  her  for  a  bill  of  exchange  drawn  by  him 
payable  to  her  order.1  Consent  may  likewise  be  presumed 
from  his  joining  in  the  indorsement  and  signing  his  name  on 
the  back  of  the  note  with  her.2  And  where  the  maker  of  a 
note  payable  to  a  married  woman  and  transferred  by  her  in- 
dorsement has  subsequently  promised  payment  to  the  in- 
dorsee, the  husband's  authority  for  the  indorsement  will  be 
presumed  as  against  such  maker.3 

§  289.  Contracts  as  Surety — Accommodation. — At  common 
law  a  married  woman  cannot  render  herself  liable  as  a  surety 
or  guarantor  for  another ;  and  this  is  true,  as  we  have  seen, 
in  many  States  under  the  most  recent  statutory  changes  of 
the  law.  At  common  law  a  married  woman  is  not  liable 
upon  her  bond  given  for  the  debt  of  her  husband,  nor  is  her 
separate  estate  liable  in  equity  for  the  payment  of  such  a 
bond.4 

A  wife's  separate  estate  is  not,  in  general,  bound  by  her 
indorsement  of  a  note  as  surety  for  her  husband.5  And  even 
now  a  note,  given  in  New  York  to  a  married  woman  by  her 
husband's  firm  and  indorsed  by  her  as  an  accommodation  for 
the  debt  of  the  firm,  will  not  bind  her  separate  estate,  where 
there  is  neither  separate  benefit  nor  an  express  charge  of  her 
estate.6  And,  in  general,  a  bill  or  note  given  by  a  married 
woman  for  her  husband's  debt  will  not  render  her  liable;7 
although  she  may  have  a  separate  estate.8     Such  a  note,  given 

UlcClain  v.  Weidemeyer,  25  Mo.  364  (1857). 

'Collier  v.  Connelly,  15  Ind.  141  (18(30) ;  Cobb  v.  Duke,  36  Miss.  60  (1858). 

8 Cotes  v.  Davis,  1  Campb.  485. 

*Dalbiac  v.  Dalbiac,  16  Ves.  116.  And  see,  as  to  wife's  liability  as  surety 
for  her  husband,  20  Cent.  L.  J.  205,  March  13th,  1885. 

5 Levi  v.  Earl,  30  Ohio  St.  147  (1876). 

•Phillips  v.  Wicks,  4  J.  &  S.  254  (1873).  So,  a  guaranty  by  a  married 
woman,  Sexton  v.  Fleet,  2  Hilt.  477  (1859). 

'Williams  v.  Hay  ward,  117  Mass.  532  (1875) ;  Ross  v.  Walker,  31  Mich.  120 
(1875) ;  Alger  v.  Scott,  54  N.  Y.  14  (1873) ;  Emery  v.  Lord,  26  Mich.  431 
(1873) ;  Hetherington  v.  Hixon,  46  Ala.  297  (1871). 

8McClure  v.  Harris,  7  Heisk.  379  (1872) ;  Hansee  v.  De  Witt,  63  Barb.  53 
0871). 


420  CAPACITY-  MAKEIED    WOMEN. 

as  surety  for  the  husband  .  debt  already  existing,  is  void.1' 
This  was  also  the  rule  in  Massachusetts  prior  to  the  Act  of 
1874.2  But  where  the  husband's  debt  is  only  part  of  the 
consideration  for  the  wife's  note,  the  balance  of  the  note, 
being  for  goods  purchased  r.y  Ler,  will  be  valid.3 

A  wife's  note  as  surety  fc.  iiie  husband's  debt  will  not  be 
rendered  more  binding  on  ^e>  by  the  fact  that  the  husband 
has  joined  in  executing  it.4  ]Nor  will  the  wife  be  liable  as 
surety  on  another  note  given  to  take  up  such  joint  note.6 
Nor  can  she,  in  general,  bind  her  separate  estate  by  executing 
such  a  joint  note  as  surety.6  So,  she  cannot  be  bound  in 
Georgia  by  her  note  for  money  borrowed  to  pay  her  hus- 
band's debts,  the  lender  knowing  the  object  of  the  loan.7 
So,  in  Louisiana,  a  note  of  the  wife,  received  knowingly  by 
a  creditor  of  the  husband  for  the  payment  of  his  debt,  is,  in 
the  hands  of  such  creditor,  utterly  void.8 

But  in  New  York,  if  a  joint  note  of  husband  and  wife, 
executed  by  her  as  surety  for  her  husband,  be  expressed  to 
be  a  "  lien  and  claim  "  on  her  separate  estate,  it  will  bind 
such  separate  estate  as  belongs  to  her  at  the  time  that  judg- 
ment is  rendered.9  So,  if  a  wife  gives  her  note  in  New  York, 
to  pay  her  husband's  note  given  for  clothing  for  their  chil- 
dren, with  the  intention  of  charging  her  separate  estate,  it 
will  be  valid.10  But  in  Connecticut  a  wife's  separate  estate  is 
not  bound  by  her  joint  note  with  her  husband  given  for  his 

1Wilhelm  v.  Schmidt,  84  111.  183  (1876). 

sNourse  v.  Henshaw,  123  Mass.  96  (1877). 

3Spencer  v.  Humiston,  9  Hun  71  (1876). 

4  National  Bank  of  New  England  v.  Smith,  43  Conn.  327  (1876). 

5Athol  Machine  Co.  v.  Fuller,  107  Mass.  437  (1871) ;  Frecking  v.  Holland, 
1  J.  &  S.  499  (1871);  S.  C,  53  N.  Y.  422;  King  v.  Thompson,  59  Ga.  380 
(1877). 

6Saulsbury  v.  Weuver,  59  Ga.  254  (1877) ;  Bartington  v.  Bradley,  16  La.  An- 
310(1861).  Although  in  equity  she  has  been  held  liable  on  such  a  noter 
containing  an  express  charge,  Bradford  v.  Greenaway,  17  Ala.  797  (1S50). 

7  Veal  v.  Hurt,  63  Ga.  728  (1879) ;  Ga.  Code  §  1783,  prohibiting  all  "  assump- 
tion of  debts  of  the  husband." 

"Claverie  v.  Gerondias,  30  La.  An.  291  (1878). 

•Todd  v.  Ames,  60  Barb.  454  (1871). 

"Francis  v.  Ross,  17  How.  Pr.  561  (1859). 


RECENT  STATUTES  OX  THE  SUBJECT.         421 

debt  and  containing  the  words,  "  Each  intending  hereby  to 
charge  our  individual  estate."1 

§  290.  In  Indiana,  a  wife  will  not  be  bound  by  a  note 
given  for  goods  sold  to  her  husband.2  Nor,  in  Alabama,  for 
a  note  given  by  her  after  her  husband's  death,  as  a  renewal, 
in  payment  of  a  note  which  she  had  signed  after  its  delivery 
as  surety  for  him  in  his  life-time.3  And  it  has  been  held 
that  when  a  married  woman's  note  for  her  husband's  debt  is 
void,  the  mortgage  given  to  secure  it  will  be  void  also;4  and 
that  no  judgment  can  properly  be  rendered  against  her  on  a 
mortgage  given  to  secure  her  husband's  note.5 

Nor  does  the  fact  that  her  note  was  given  for  necessaries 
sold  to  her  husband  render  her  liable.6  Nor  that  it  was 
given  for  the  discontinuance  of  a  suit  against  the  husband;7 
or  in  payment  of  a  judgment  against  him.8  Nor  is  she  liable 
on  her  joint  note  with  her  husband  for  his  debt,  because  her 
father's  estate,  inherited  partly  by  her,  was  liable  as  surety 
for  it.9  Nor  is  she  liable  because  the  notes  were  given  to 
enable  her  husband  to  carry  on  the  work  of  a  plantation  not 
belonging  to  her.10  But  her  note  given  for  a  loan  made  to 
the  husband  to  enable  him  to  carry  on  the  work  of  her  farm 
would  be  binding  on  her.11  And  in  Louisiana,  where  author- 
ization of  a  wife's  note  by  a  judge  is  provided  for  by  statute, 
such  authorization  will  not  prevent  her  setting  up  that  the 
note  in  question  was  given  for  a  debt  of  her  husband.12 

§  291.  Recent  Statutes  on  the  Subject. — In  some  States, 

'Smith  v.  Williams,  33  Conn.  409  (1876). 

'Brick  v.  Scott,  47  Ind.  299  (1874). 

"Hetheringten  v.  Hixon,  46  Ala.  297  (1877). 

'Koechlin  v.  Lorber,  26  La.  An.  737  (1874). 

6Ferguson  v.  Reed,  45  Tex.  574  (1876).    The  mortgage  in  this  case  cov- 
ered part  of  her  homestead. 

'Hutchinson  v.  Underwood,  27  Tex.  255  (1863). 

'De  Vries  v.  Conklin,  22  Mich.  255  (1871). 

'Griffin  v.  Ragan,  52  Miss.  78  (1876). 

'West  v.  Laraway,  28  Mich.  464  (18Y4). 
"Draughon  v.  Ryan,  16  La.  An.  309  (1861). 
"Smith  v.  Kennedy,  13  Hun  9  (1878). 
•"Barth  v.  Kaso,  30  La.  An.  940  (1878). 


422  CAPACITY MARRIED    WOMEN. 

however,  by  force  of  recent  statutes,  a  wife  may  bind  herself 
by  a  note  given  for  her  husband's  debt  without  any  separate 
benefit  or  express  charge.  This  is  so  in  Kansas;1  and  to 
some  extent  in  South  Carolina;2  and  in  Wisconsin  for- 
merly;3 and,  since  1874,  in  Massachusetts.4  In  Mississippi 
such  a  note  binds  her  personal  property  and  the  income  of 
her  real  estate,5  but  not  the  income  of  her  real  property  after 
her  death.6  As  to  such  income  for  her  life,  her  power,  in 
Mississippi,  extends  also  to  the  giving  of  a  mortgage  securing 
her  notes  for  her  husband's  debts.7 

In  Massachusetts,  since  the  statute  already  referred  to,  a 
wife  may  give  or  indorse  a  note  for  the  accommodation  of  her 
husband's  firm,  which  will  be  valid  even  between  the  original 
parties  to  it.8  So,  in  Maine,  a  wife's  note,  signed  as  surety 
with  her  husband  in  Massachusetts  and  delivered  by  mail  in 
Maine,  is  held  to  be  binding  on  her.9  In  Missouri,  if  a 
married  woman  give  her  note  to  take  up  a  note  of  her  son, 
which  is  thereupon  surrendered  and  destroyed,  her  note  will 
be  binding  upon  her  without  mention  of  any  separate  estate.10 
But  in  this  case  she  can  hardly  be  looked  upon  as  a  mere 
surety,  there  having  been  a  fresh  and  original  consideration 
for  her  note.  So,  in  Massachusetts,  where  her  note  was  given 
for  money  loaned  at  the  time  to  her  husband  at  his  request.11 

xDeering  v.  Bovle,  8  Kans.  525  (1871).  And  by  a  joint  note  with  him  for 
his  debts,  Wicks  v.  Mitchell,  9  lb.  80  (1872). 

2 Her  separate  estate  will  he  liable  for  her  bond  given  on  sufficient  consid- 
eration as  surety  for  her  husband,  Whittle  v.  Wolfe,  16  So.  Car.  256  (1881) ; 
or  on  her  note  for  like  consideration  and  given  without  duress,  for  her  hus- 
band, Clinkscales  v.  Hall,  15  lb.  602  (1880) ;  or  for  her  son,  Pelzer  v.  Camp- 
bell, lb.  581  (1880). 

3  Heath  v.  Van  Cott,  9  Wis.  516  (1859).  But  see,  now,  contra,  Kavanagh 
v.  O'Neill,  53  lb.  101  (1881). 

4 Major  t>.  Holmes,  124  Mass.  108  (1878);  Thacher  v.  Churchill,  118  Mass. 
108  (1875) ;  Mass.  Laws  of  1874  c.  184. 

"Dibrell  v.  Carlisle,  48  Miss.  691  (1873). 

6  Reed  v.  Cleman,  51  Miss.  836  (1876). 

7  Fox  worth  v.  Magee,  44  Miss.  430  (1870);  Foxworth  v.  Bullock,  44  Misa. 
457  (1870). 

8  Ken  worthy  v.  Sawyer,  125  Mass.  28  (1878). 

9Bell  v.  Packard,  69  Me.  105  (1879). 
10Myers  v.  Van  Wagoner,  56  Mo.  115  (1874). 
"Goodnow  v.  Hill,  125  Mass.  587  (1878). 


ACCOMMODATION    PAPER.  423 

So,  in  Georgia,  where  her  note  was  given  jointly  with  her 
husband  in  regard  to  her  own  business  conducted  by  him  for 
her,  although  she  would  not  have  been  bound  as  a  mere 
surety  for  him  in  his  business.1  Whether,  in  such  a  case, 
the  wife  signs  as  surety  for  her  husband  or  in  her  own  sepa- 
rate business,  is  a  question  for  the  jury.2 

§  292.  Accommodation  Paper  with  Express  Charge  of  Sepa- 
rate Property. — In  New  York  the  wife's  indorsement  for  her 
husband,  with  an  express  charge  of  her  separate  estate,  ren- 
ders her  liable.3  And  in  New  Jersey,  where  she  cannot  bind 
herself  for  the  debt  of  her  husband,  her  joint  note  with  him 
for  a  debt  constituting  a  lien  upon  his  land  (the  note  con- 
taining an  express  charge  of  her  separate  estate)  has  been 
held  binding  upon  her  in  consideration  of  the  benefit  received 
by  her  in  regard  to  her  dower  interest  in  the  land/  And  in 
New  York  a  wife's  note  made  payable  "  out  of  my  separate 
estate,"  is  a  sufficient  admission  that  she  had  such  estate.5 
In  Massachusetts,  before  the  Act  of  1874,  a  wife's  estate  was 
not  liable  even  in  equity  upon  an  accommodation  note,  where 
there  was  neither  separate  benefit  to  her,  nor  express  charge 
of  her  estate,  nor  credit  given  to  it.6  And  this  is  still  the 
rule  in  New  York  and,  in  general,  wherever  there  is  not 
statutory  provision  to  the  contrary.7 

lKing  v.  Thompson,  59  Ga.  380  (1877). 

Wrecking  v.  Rolland,  53  N.  Y.  422  (1873). 

sCorn  Exch.  Ins.  Co.  v.  Babcock,  42  N.  Y.  613  (1870) ;  Barnett  v.  Lichten- 
Btein,  39  Barb.  194  (1863).  The  case  of  Kelso  v.  Tabor,  52  Barb.  125  (1867),  in 
which  the  contrary  was  held,  is  no  longer  an  authority,  Corn  Exch.  Ins.  Co.  v. 
Babcock,  supra.  Such  express  charge  is  also  necessary  in  Nebraska  to  render 
valid  a  wife's  note  given  as  surety,  State  Sav.  Bank  v.  Scott,  10  Neb.  83  (1880). 

4  Perkins  v.  Elliott,  8  C.  E.  Green  526  (1872) ;  S.  C,  7  lb.  127. 

6 Waggoner  v.  Eager,  8  Hun  142  (1876). 

•Willard  v.  Eastham,  15  Gray  328  (1860).  "And  our  conclusion,"  said 
Judge  Hoar  in  this  case,  p.  335,  "  is  that  when  by  the  contract  the  debt  is 
made  expressly  a  charge  upon  the  separate  estate,  or  is  expressly  contracted 
upon  its  credit,  or  when  the  consideration  goes  to  the  benefit  of  such  estate 
or  to  enhance  its  value,  then  equity  will  decree  that  it  shall  be  paid  from 
such  estate  or  its  income  to  the  extent  to  which  the  power  of  disposal  by 
the  married  woman  may  go.  But  where  she  is  a  mere  surety  or  makes  the 
contract  for  the  accommodation  of  another,  without  consideration  received 
by  her,  the  contract  being  void  at  law,  equity  will  not  enforce  it  against  her 
estate,  unless  an  express  instrument  makes  the  debt  a  charge  on  it." 

7  Yale  v.  Dederer,  18  N.  Y.  265  (1858) ;  S.  C,  22  76.  450;  S.  C.,  68  lb.  329; 


424  CAPACITY MARRIED    WOMEN. 

And  it  is  a  good  plea  by  a  married  woman  that  she  signed 
the  note  simply  as  surety  for  her  husband  without  any  sepa- 
rate benefit  to  herself  or  to  her  separate  estate.1  An  inten- 
tion to  charge  her  separate  estate  may,  however,  be  presumed 
from  circumstances,  and  such  presumption  has  been  made  in 
the  case  of  a  joint  note  given  in  compromise  of  a  suit  against 
the  husband.2  So,  where  the  wife  signs  as  principal  and  the 
husband  as  surety,  and  the  payee  is  directed  to  send  the 
money  to  her,  the  note  will  be  presumed  to  have  been  made 
for  her  separate  use,  but  the  presumption  may  be  rebutted 
by  evidence  of  a  renewal  by  the  husband  without  the  wife.3 

§  293.  Subsequent  Promise  After  Death  of  Husband — Or 
Divorce. — At  common  law  the  wife's  incapacity  to  bind  her- 
self by  contract  during  coverture  extended  to  her  subsequent 
promise  made  after  her  husband's  death  in  consideration  of 
such  contract,  and  the  subsequent  promise  was  held  to  be 
without  valid  consideration.4  So,  a  note  given  by  her  after 
her  husband's  death  has  been  held  in  New  York  not  to  be 
supported  by  a  purchase  of  goods  made  by  her  during  cover- 
ture as  a  sole  trader.5  So,  forbearance  extended  to  a  wife  on 
her  note  given  as  a  sole  trader  is  no  consideration  for  her 
note  given  after  her  husband's  death.6  So,  she  cannot  make 
herself  liable  for  a  note  given  as  surety  for  her  husband  by 
a  renewal  of  it  after  his  death.7  And,  in  like  manner,  her 
promise  after  his  death  to  pay  a  note  made  by  her  during 
coverture  is  unavailable.8     But  she  would  be  bound  by  her 

"  If  the  promise,"  said  Judge  Comstock  in  this  case,  "  is  on  her  own  account, 
if  she  or  her  separate  estate  receives  a  benefit,  equity  will  lay  hold  of  these 
circumstances  and  compel  her  property  to  respond  to  the  engagement. 
Where  these  grounds  of  liability  do  not  exist,  there  is  no  principle  on  which 
her  estate  can  be  made  answerable." 

^oates  v.  McKee,  26  Ind.  223  (1866). 

2  Lincoln  v.  Eowe,  51  Mo.  571  (1873). 

3Prendergrast  v.  Borst,  7  Lans.  489  (1873). 

4  Bvles  65  ;  1  Parsons  79 :  Littlefield  v.  Shee,  2  B.  &  Ad.  811  (1831) ;  Felton 
v.  Reid,  7  Jones  269  (1859) ;  Vance  v.  Wells,  6  Ala.  737  (1844) ;  Porterheld  v. 
Butler,  47  Miss.  165  (1873). 

"Goulding  v.  Davidson,  28  Barb.  438  (1858). 

6 Lloyd  v.  Lee,  1  Stra.  94. 

'Hetherington  v.  Hixon,  46  Ala.  297  (1877). 

'Smith  v.  Allen,  1  Lans.  101  (1869). 


DEFENSE    OF    COVERTURE.  425 

promise  after  his  death  to  pay  a  joint  note  given  by  them  for 
her  ante-nuptial  debts.1  Although,  as  has  been  seen,  a  new 
note  by  her  as  widow  in  payment  of  a  joint  note  made  with 
her  husband  will  not  be  binding  on  her,  especially  if  given 
by  her  without  knowledge  that  she  was  not  liable  on  the 
former  note.2  Xor  will  a  promise,  made  after  her  husband's 
death,  to  pay  for  goods  purchased  by  her  while  living  separate 
from  her  husband  and  in  adultery,  be  binding  on  her,  although 
these  circumstances  were  unknown  to  the  holder.3 

In  like  manner  her  promise,  made  after  divorce,  to  pay  for 
goods  purchased  by  her  while  married,  is  without  considera- 
tion.4 And  this  is  even  true  of  her  promise  made  after 
divorce  to  pay  a  note  given  by  her  for  necessaries  furnished 
on  her  credit  before  the  divorce,  and  while  she  was  living 
separate  from,  and  deserted  by,  her  husband.5  In  Pennsyl- 
vania, however,  an  agreement  by  the  wife  before  divorce  is 
sufficient  consideration  for  a  promise  made  by  her  afterwards.6 

And  notwithstanding  a  wife's  common  law  incapacity  to 
make  a  note,  she  may  as  a  widow  bind  herself  in  some  cases 
by  a  subsequent  ratification,  e.  g.  by  keeping  from  her  hus- 
band's administrator  the  goods  purchased  by  her,  for  which 
she  had  given  the  note.7  And  if  money  is  borrowed  by  a 
wife  having  a  separate  estate,  her  liability  in  equity  is  a  suffi- 
cient consideration  for  a  promise  of  payment  made  by  her 
after  her  husband's  death.8  And  it  has  been  held  that  her 
liability  as  a  wife  for  the  rent  of  a  house  is  good  considera- 
tion for  her  due-bill  given  after  she  became  a  widow.9 

§  294.  Defense  of  Coverture — When  Admissible. — The  de- 
fense of  coverture,  like  all  other  defenses  growing  out  of  a 

'Parker  v.  Cowan,  1  Heisk.  518  (1870). 
'Coward  v.  Hughes,  1  K.  &  J.  443  (1835). 
"Meyer  v.  Haworth,  8  Ad.  &  El.  467  (1838). 
♦Watkins  v.  Halstead,  2  Sandf.  311  (1849). 
6  Hay  ward  v.  Barker,  52  Vt.  429  (1880). 
'Hemphill  v.  McClimans,  24  Penna.  St.  367  (1855). 
'Hunter  v.  Duvall,  4  Bush  438  (1868). 
8Lee  v.  Muggeridge,  5  Taunt.  36  (1813). 
•Cleland  v.  Low,  32  Ga.  458  (1861). 


426  CAPACITY MARRIED    WOMEN. 

party's  incapacity,  is  the  personal  privilege  of  the  married 
woman  or  her  representative,  and  the  indorser  of  a  note  can- 
not set  up  in  his  defense  the  coverture  of  the  maker;1  even 
though  the  holder  took  the  note  with  a  knowledge  of  that 
fact.2  In  like  manner  the  guarantor  of  a  note  cannot  set  up 
that  the  maker  was  a  married  woman;3  nor  the  second  in- 
dorser, that  the  first  indorser  was  a  married  woman.4  Nor 
can  the  drawer  of  a  bill  set  up  the  incapacity  of  the  in- 
dorser;5 nor  the  acceptor,  the  incapacity  of  drawer  or  in- 
dorser.6 So,  the  drawer  of  a  bill  made  payable  to  a  married 
woman  cannot  question  her  right  to  receive  payment  of  it.7 

§  295.  Wife's  Liability  While  Living  Separate. — At  com- 
mon law  a  wife's  liability  is  restricted  to  cases  where  her 
husband  is  civiliter  mortuus,  banished  or  transported.8  Un- 
less so  provided  by  statute,  a  wife  living  separate  from  her 
husband,  although  in  another  State,  does  not  thereby  become 
liable  on  her  note.9  And  this  is  true,  although  she  have 
a  separate  maintenance  secured  to  her  by  deed.10  And  while 
living  separate,  she  cannot  make  a  valid  grant  of  an  annuity 
out  of  such  deed  for  her  separate  maintenance.11    Nor  can 

'Halev  v.  Lane,  2  Atk.  181  (1741) ;  Prescott  Bank  v.  Oaverly,  7  Gray  217 
(1856);  Erwin  v.  Downs,  15  N.  Y.  575  (1857) ;  Archer  v.  Shea,  14  Hun  49a 
(1878) ;  Leitner  v.  Miller,  49  Ga.  489  (1873).  Nor  can  an  indorser  set  up  in 
defense  against  a  subsequent  holder  that  a  note  purporting  to  be  made  by 
an  agent  was  void  as  to  the  maker  because  he  had  died  before  it  was  signed, 
Burrill  v.  Smith,  7  Pick.  291  (1828). 

2 Erwin  v.  Downs,  15  N.  Y.  575  (1857). 

sNabb  v.  Koontz,  17  Md.  283,  291  (1861). 

*1  Parsons  79;  Ogden  v.  Blydenburgh,  1  Hilt.  182  (1856);  Prescott  Bank 
v.  Caverly,  7  Gray  217  (1856). 

5This  has  been  held  in  case  of  incapacity  as  a  bankrupt,  Drayton  v.  Dale, 
2  B.  &  C.  293;  Pitt  v.  Chappelow,  8  M.  &  W.  616;  or  as  a  government  offi- 
cer, Knox  v.  Reeside,  1  Miles  294  (1836). 

6Byles  67;  Prestwick  v.  Marshall,  4  C.  &  P.  594;  S.  C,  7  Bing.  565;  Smith 
v.  Marsack,  6  C  B.  486.  So,  where  the  bill  was  both  drawn  and  indorsed 
by  the  wife,  Prince  v.  Brunatte,  L  Bing.  N.  C.  435. 

7Cathell  v.  Goodwin,  1  H.  &  G.  468  (1827). 

8 Edwards  v  Davis,  16  Johns.  281  (1819). 

9Chouteau  v.  Merry,  3  Mo.  182  (1833). 

10Byles  65;  Marshall  v.  Rutton,  8  T.  R.  545.  But  see  Jones  v.  Lewis,  7 
Taunt.  54;  S.  C,  2  Marsh.  385.  And  a  wife  has  been  held  liable  in  such  case 
on  her  acceptance,  Stuart  v.  Kirkwall',  3  Madd.  387. 

"Hyde  v.  Price,  3  Ves.  437. 


LIVING   SEPARATE.  427 

she  be  sued  alone  by  reason  of  her  living  separate  and  hav- 
ing a  separate  maintenance.1 

And  in  England  she  is  not  liable  on  her  contracts,  even 
when  living  separate  from  her  husband  and  divorced  amensa 
et  thoro.2  But  in  America,  if  living  separate  and  divorced, 
she  is  liable  on  her  note  and  may  be  sued  alone.3 

§  296.  Living-  Separate — And  With  Separate  Estate. — In 
England  she  is  liable  on  her  bond,  if  living  separate  from 
her  husband  and  having  a  separate  estate.4  When  so  liv- 
ing and  having  a  separate  estate,  her  estate  is  liable  in 
equity  for  the  fees  of  a  solicitor  employed  by  her  without 
any  express  agreement  or  charge  of  her  separate  property.5 
And  a  bill  in  equity  will  lie  against  her  for  moneys  loaned 
to  and  used  by  her  for  necessaries  while  deserted  by  her  hus- 
band, she  having  a  separate  estate.6  In  Louisiana  she  is  not 
liable  on  her  note  while  living  separate,  unless  it  was  made  for 
her  separate  benefit.7  But,  in  general,  where  she  is  living  sepa- 
rate from  her  husband  and  has  a  separate  estate,  in  a  con- 
tract for  work  and  labor  done  for  her,  an  intention  to  charge 
such  estate  will  be  presumed  from  circumstances.8 

§  297.  Living-  Separate  and  as  Sole  Trader. — Where  she  is 
living  separate  from  her  husband  and  in  adultery  and  carry- 
ing on  a  separate  business,  she  will  be  liable  for  work  done 
for  her  in  such  business.9  And  it  has  been  held  that  where 
a  wife  is  living  in  England  apart  from  her  husband,  who  is 

'Lean  v.  Schutz,  2  W.  Bl.  1195;  Hatchett  v.  Baddeley,  lb.  1079;  Lewis  v. 
Lee,  3B.  &  C.  291  (1821). 

'Lewis  v.  Lee,  3  B.  &  C.  291 ;  S.  C,  5  D.  &  R.  90.     And  in  England  a  wai 
rant  of  attorney  given  by  a  married  woman  divorced  a  memo,  et  thoro  and 
living  separate  from  her  husband  will  be  set  aside,  Faithorne  v.  Blaguire, 
6  M.  &  S.  73. 

"Piercer.  Biunham,  4  Mete.  303  (1842). 

4Corbett  v.  Poelnitz,  1  T.  R.  5. 

B Murray  v.  Barlee,  3  My.  &  K.  209  (1834) ;  Coleman  v.  Wooley,  10  B.  Mon. 
320  (1850). 

•Jenner  v.  Morris,  3  DeG.  F.  &  J.  45 ;  Walker  v.  Simpson,  7  Watts  &  S.  83 , 
Kenyon  v.  Farris,  47  Conn.  510  (1880). 

'Lee  v.  Cameron,  14  La.  An.  711  (1859). 

"Conlin  v.  Cantrell,  64  N.  Y.  217  (1876);  Coleman  v.  Wooley,  10  B.  Mon. 
320(1850). 

•Cox  v.  Kitchen,  1  Bos.  &  P.  338. 


428  CAPACITY MARRIED    WOMEN. 

an  alien  residing  in  France  in  the  public  service  and  de- 
tained by  such  disability  in  France,  she  is  liable  as  a  feme 
sole  for  wages  of  servants  and  for  money  lent  her.1  So, 
if  her  husband  resides  abroad  and  she  is  living  in  England 
and  carrying  on  business  there  as  a  sole  trader.2  And  if 
her  husband  is  an  alien  enemy  in  the  enemy's  country  and 
she  is  living  separate  from  him  in  England,  she  is  liable  as 
a  sole  trader  for  wages  and  for  money  lent  her.3  So,  where 
the  husband  is  an  alien  residing  abroad  and  appears  never 
to  have  been  in  the  United  States,  and  his  wife  is  living 
separate  from  him  in  the  United  States  and  carrying  on 
business  in  her  maiden  name  as  a  sole  trader,  she  will  be 
liable  on  her  note.4  So,  she  would  be  liable  in  like  circum- 
stances upon  her  indorsement,  her  husband's  consent  being 
presumed  from  the  circumstances  of  the  case.5 

And,  in  general,  where  a  married  woman  is  living  separate 
from  her  husband  and  doing  business  as  a  sole  trader,  an  in- 
tention to  charge  her  separate  estate  will  be  presumed;6 
especially  where  she  has  been  abandoned  by  her  husband.7 

§  298.  Deserted  by  Husband. — And  where  she  was  living 
separate  from  her  husband,  in  Massachusetts,  as  a  sole  trader, 
on  account  of  his  cruelty,  he  living  in  New  Hampshire,  she 
was  permitted,  in  Massachusetts,  to  sue  alone  on  a  note  held 
by  her  as  payee.8  So,  the  wife  of  a  seaman,  who  has  been 
absent  for  more  than  two  years,  has  been  held,  in  Pennsyl- 
vania, to  have  the  rights  of  a  sole  trader  and  to  be  entitled 
to  receive  as  such  a  distributive  share  of  ker  parent's  estate.9 
In  Georgia  a  married  woman  deserted  by  her  husband  may 

1  Derry  v.  Duchess  of  Mazarine,  1  Ld.  Raym.  147. 
2De  Gail  Ion  v.  L'Aigle  1  Bos.  &  P.  357. 
3Deerly  v.  Mazarine,  1  Salk.  116. 
4McArthur  v.  Bloom,  2  Duer  151  (1853). 
6 Roland  v.  Logan,  18  Ala.  307  (1850). 

"Johnson  v.  Gallagher,  30  L.  J.  Ch.  298  (1861) ;  S.  0.,  3  DeG.  F.  &  J.  513; 
London  Chartered  Bank  v.  Lempriere,  L.  R.  4  P.  C.  593  (1873). 
7  Rhea  v.  Rbenner,  1  Pet.  105  (1828). 
"Abbotts  Bailey,  6  Pick.  89  (1827).' 
•Valentine  v.  Ford,  2  Browne  193  (Pa.  1812^ 


DESERTED    BY    HUSBAND.  429 

make  a  valid  note.1  But  in  Vermont  she  is  not  liable  on  her 
note  given  under  such  circumstances  even  for  necessaries 
sold  her  on  her  own  credit.2  If,  while  living  separate,  she 
be  sued  alone  on  her  note,  the  burden  of  proving  desertion 
is  in  all  cases  on  the  plaintiff.3  In  Colorado  she  has  been 
held  liable  on  a  lease,  where  she  was  living  separate  from, 
and  abandoned  by,  her  husband,  who  had  never  been  in  the 
State.4  In  Alabama,  if  living  separate  from,  and  abandoned 
by,  her  husband,  who  had  left  the  State,  she  may  sue  alone 
on  a  note  made  payable  to  her.6  In  South  Carolina,  if  her 
husband  has  left  the  State  and  has  not  been  heard  from,  she 
will  be  liable  on  her  note.6  But  in  Kentucky  she  will  not 
be,  unless  especially  empowered  by  the  court  to  act  as  a  feme 
sole  ;  even  though  her  husband  have  abandoned  her  and  his 
whereabouts  be  unknown.7  But  at  common  law,  if  the  hus- 
band has  been  transported  for  seven  years,  and  has  not  after- 
wards returned,  the  wife  may  sue  as  an  unmarried  woman.8 
And  where  the  husband  has  been  absent  for  more  than  seven 
years  and  the  wife  pleads  her  coverture  in  her  defense,  she 
must  prove  him  to  have  been  alive  within  that  time.9  In 
Louisiana  if  a  wife  is  separated  from  her  husband  by  decree 
of  court  and  is  administering  her  own  affairs,  she  is  liable  on 
her  note  as  a  feme  sole}0  And  it  has  been  held  in  the  United 
States  that  a  woman  living  separate  from,  and  abandoned  by, 
her  husband,  who  is  both  non-resident  and  alien,  may  sue 
and  be  sued  as  an  unmarried  woman.11    Although  in  the 

1  Clark  v.  Valentine,  41  Ga.  143  (1870). 
2Hayward  v.  Barker,  52  Vt.  429  (1880). 
'Gregory  v.  Pierce,  4  Mete.  478  (1842). 
'Blumenberg  v.  Adams,  49  Cal.  308. 

5Mead  v.  Hughes,  15  Ala.  141  (1849);    Arthur  v.  Broadnax,  3  lb.  557 

(1842). 

6 Bean  v.  Morgan,  2  McCord  148  (1827).  And  her  conveyance  is  valid 
under  like  circumstances,  Boyce  v.  Owens,  1  Hill  8  (So.  Car.  1833). 

'Hannon  v.  Madden,  10  Bush  664  (1874). 

8  Carrol  v.  Blencow,  4  Esp.  27  (1801). 

•Hopewell  v.  De  Pinna,  2  Ca-mpb.  113  (1809) ;  Lambert  v.  Atkins,  16.  273. 

10Cormier  v.  De  Valcourt,  33  La.  An.  1168  (1881). 

"Gregory  v.  Paul,  15  Mass.  31  (1818) ;  Robinson  v.  Reynolds,  1  Aiken  174 
(1826). 


430  CAPACITY MARRIED    WOMEN. 

Duchesse  de  Pienne's  case,  already  referred  to,  the  contrary 
was  held  in  England.1 

§  299.  Sole  Trader. — Where  the  wife  is  a  sole  trader  by 
the  custom  of  London  and  living  separate  from  her  husband, 
an  intention  to  charge  herself  as  such  will  be  presumed.2 
Especially  if  her  husband  is  residing  abroad.3  And  in  such 
case  his  consent  to  her  bill  or  indorsement  will  be  presumed.4 
So,  if  she  has  been  abandoned  by  her  husband  and  is  living 
separate  from  him  and  doing  business  as  a  sole  trader,  she 
will  be  liable  as  such  on  her  contracts.5  And  where  she  is 
carrying  on  business  for  herself  with  her  husband's  consent, 
her  separate  estate  will  be  liable.6  But  in  all  such  cases 
either  her  separate  benefit  or  the  fact  of  her  separate  business 
must  appear.7 

If,  however,  she  has  separate  property  and  is  doing  busi- 
ness as  a  sole  trader,  the  want  of  separate  benefit  to  her  from 
the  contract  will  be  no  defense.8  If  she  is  a  sole  trader  with 
a  separate  estate  of  her  own,  it  will  be  liable  for  her  debts 
contracted  in  the  business.9  Thus,  if  she  engage  in  the  busi- 
ness of  keeping  a  boarding  house  and  purchase  goods  for  it 
on  her  own  credit,  she  will  be  liable.10 

And  the  note  of  a  sole  trader  given  in  her  business  will 
be  binding  upon  her  ;n  especially  where  it  has  been  given  for 

lKay  v.  Duchesse  de  Pienne,  3  Campb.  123  (1811).  Although  it  is  said 
.that  it  would  be  otherwise  if  the  husband  had  never  been  in  England,  lb. 
This  case  has  since  been  questioned  in  Barden  v.  Keverberg,  2  M.  &  W.  Gl 
(1836). 

2  Johnson  v.  Gallagher,  30  L.  J.  Ch.  298  (1861)  ;  S.  C,  3  DeG.  F.  &  J.  513. 
See,  too,  London  Chartered  Bank  v.  Lempriere,  L.  R.  4  P.  C.  593  (1873),  dis- 
approving Shattock  v.  Shattock,  L.  R.  2  Eq.  182  (1866). 

3De  Gaillon  v.  L'Aigle,  1  Bos.  &  P.  357;  McArthur  v.  Bloom,  2  Duer  151 
(1850). 

1  Roland  v.  Logan,  18  Ala.  307  (1850). 

5 Rhea  v.  Rhenner,  1  Pet.  105  (1828). 

6Todd  v.  Lee,  16  Wis.  480  (1863).  And  her  stock  in  trade  is  her  separate 
property  and  liable  as  such  for  debts  incurred  in  the  business,  Partridge  v. 
.Stocker,  36  Vt.  108  (18(53). 

7  Bowles  v.  Turner,  15  La.  An.  352  (1860). 

8 Levy  v.  Rose,  17  La.  An.  113  (1865). 

9 Todd  v.  Lee,  15  Wis.  365  (1862). 

"Tillman  v.  Shackleton,  15  Mich.  447  (1867). 

"Camden  v.  Mullen,  29  Cal.  564  (1866) ;  Nispel  v.  Laparle,  74  111.  306  (1874). 


SOLE    TRADER.  431 

goods  purchased  for  her  business  on  her  sole  credit.1  So,  in 
Louisiana,  where  she  is  separated  in  matter  of  property  from 
her  husband  by  judgment  of  the  court,  and  gives  her  note 
in  her  sole  business  as  a  public  merchant.2  And  in  Colo- 
rado she  is  liable  by  force  of  the  statute  for  goods  bought  for 
her  business  as  a  sole  trader.3  So,  in  New  York,  since  the 
Act  of  1860,  she  is  liable  for  her  note  given  as  a  sole  trader, 
although  not  for  the  benefit  of  her  separate  estate.4  And 
even  for  a  note  given  after  the  passage  of  the  act  for  goods 
purchased  before  as  a  sole  trader,  and  still  in  her  possession 
at  the  time  of  making  the  note.5  So,  she  would  be  liable 
upon  her  indorsement  of  a  note  made  to  her  as  a  sole  trader, 
even,  it  seems,  though  made  by  her  husband.6 

But  the  mere  fact  of  her  doing  business  for  herself  will 
not  render  her  liable  upon  her  note  for  money  loaned,  not 
appearing  to  be  in  such  business,  and  a  subsequent  divorce 
will  not  make  such  note  valid.7  And  in  Indiana  it  has  been 
held  that  a  wife,  having  a  separate  estate  and  doing  business 
as  a  sole  trader,  will  not  be  liable  for  goods  purchased  by  her 
as  such,  where  no  intention  to  charge  her  separate  estate 
appears.8  So,  in  Kentucky,  where  a  married  woman  is  part 
owner  and  proprietor  of  a  hotel  and  gives  her  note  for  sup- 
plies purchased  for  it,  it  is  held  that  she  will  only  be  liable 
upon  proof  that  such  supplies  are  necessary  to  the  business.9 

Although  the  contracts  of  a  sole  trader  are  recognized  as 
valid  in  London,  she  cannot  as  such  bring  an  action  in  her 
own  name  without  her  husband,  in  the  courts  of  Westminster, 
to  recover  for  goods  sold  by  her  or  other  contracts  made  in 

'Gillam  v.  Boynton,  36  Mich.  236  (1877). 

*Moore  v.  Coleman,  30  La.  An.  1157  (1878). 

3Barnes  v.  De  France,  2  Col.  294  (1874) ;  Col.  R.  S.  455. 

4 Lewis  v.  Woods,  4  D*ly  241  (1872) ;  N.  Y.  Stat.  1860  c.  90. 

'Barton  v.  Beer,  35  Barb.  78  (1861) ;  S.  C,  21  How.  Pr.  309. 

•Wilthaus  v.  Ludecus,  5  Rich.  326  (1852). 

70'Daily  v.  Morris,  31  Ind.  Ill  (1869).  Nor  will  she  be  liable  as  a  sole 
trader  on  a  note  given  for  accommodation  and  with  no  advantage  to  her 
separate  business  to  one  having  notice  thereof,  Bell  v.  Ladd,  14  Phila.  168 
(1880). 

8Hasheagen  v.  Specker,  36  Ind.  413  (1871). 
9 Harris  v.  Dale,  5  Bush  61  (186S). 


432  CAPACITY MARRIED    WOMFN. 

her  separate  business.1  Nor  is  she  liable  to  be  sued  alone  in 
those  courts,  as  a  sole  trader.2  On  the  other  hand,  it  was 
held  long  since,  in  Massachusetts,  that  a  woman,  living  sepa- 
rate from  her  husband  and  doing  business  for  herself  as  a 
sole  trader,  might  sue  alone  upon  a  note  or  bill  held  by  her.3 

'Caudell  v.  Shaw,  4  T.  R.  361. 
2  Beard  v.  Webb,  2  Bos.  &  P.  93. 
•Abbott  v.  Bailey,  6  Pick.  89  (1827). 


SEPARATE    ESTATE    IN    EQUITY.  433 


II.    WIFE  S    SEPARATE    ESTATE. 

300.  Separate  Estate  in  Equity. 

301.  Disposal  of  Separate  Estate  Restricted. 

302.  Express  Charge  of  Separate  Estate. 

303.  Effect  on  Negotiability—  Estoppel. 

304.  Implied  Charge. 

305.  from  Living  Separate. 

306.  from  Giving  Note  or  Bill. 

307.  with  Benefit  to  Giver. 

308.  from  Credit  Given. 

309.  from  Separate  Benefit. 

310.  in  Joint  Notes. 

311.  from  Purchase  of  Separate  Property. 

312.  Separate  Benefit — Must  Appear. 

313.  Presumption  Contra. 

§  300.  Separate  Estate  in  Equity. — Independent  of  recent 
statutes,  the  separate  estate  of  a  married  woman  has  long 
been  recognized  and  protected  in  courts  of  equity.  And,  in 
general,  a  wife  is  in  equity  treated,  so  far  as  regards  her 
separate  estate,  as  a  feme  sole}  Where  a  note  is  indorsed 
to  a  wife,  it  is  presumed,  under  the  New  York  Statute  of 
1849,  to  be  her  separate  estate.2  And  the  fact  that  it  was 
given  to  her  in  consideration  of  money  loaned  by  her  hus- 
band will  not  of  itself  amount  to  a  rebuttal  of  such  presump- 
tion.3 And  in  New  York,  since  the  Acts  of  1848  and  1849, 
a  married  woman  may  bring  an  action  on  a  note  made  to  her 
for  a  consideration  proceeding  from  her  husband.4 

The  separate  estate  of  a  wife  is,  in  general,  not  liable  for 
her  husband's  debts,5  but  is  liable  in  equity  for  her  own 
debts.6  So,  the  separate  estate  of  a  married  woman  is  liable 
in  equity  for  the  payment  of  her  note.7     Although  this  is 

JHeaden  v.  Rosher,  1  Mac  &  Y.  90  (1S24) ;  Cooke  v.  Husbands,  11  Md.  492 
(1857) ;  Burnett  v.  Hawpe,  25  Gratt.  481  (1874).  For  a  very  full  and  able 
discussion  of  the  liabilities  attaching  to  and  growing  out  of  a  married 
woman's  separate  estate  the  reader  is  referred  to  the  case  of  Hulme  v.  Ten- 
ant. 1  Bro.  C.  C.  16,  and  the  English  and  American  notes  upon  the  case  in 
1  White  &  Tud.  L.  C.  Eq.  679  el  seq. 

2Dillaye  v.  Parks,  31  Barb.  132  (1S60). 

3Looke  v.  Newman,  75  111.  215  (1874). 

♦Rynders  v.  Crane,  3  Daly  339  (1870). 

5\Veeman  v.  Anderson,  42  Penna.  St.  311  (1862). 

6Aylett  v.  Ashton,  1  My.  &  Cr.  105  (1835). 

'Bullpin  v.  Clark,  17  Ves.  365. 

2c 


434  CAPACITY MARRIED    WOMEN. 

not  so,  unless  the  requirements  of  existing  local  statutes  are 
followed.1 

§  301.  Disposal  of  Separate  Estate  Restricted. — The 
power  of  a  wife  to  bind  her  separate  estate  is  often  limited, 
even  in  equity,  by  the  instrument  creating  the  estate.2  If, 
however,  there  are  no  restrictions  in  such  creating  instru- 
|  ment,  she  may  dispose  of  her  separate  property  in  equity  as 
an  unmarried  woman,  but  only  in  the  manner,  if  any,  pre- 
scribed by  such  instrument  or  by  statute.3  Where  she  holds 
her  separate  estate  with  restrictions  against  anticipation  or 
alienation,  it  will  not  be  liable  for  the  payment  of  a  note 
given  by  her  jointly  with  her  husband  and  others.4  In  some 
States,  however,  it  is  held  that  she  has  no  power  over  her 
separate  estate  except  such  as  is  expressly  given  to  her. 
Thus,  where  she  has  a  separate  estate  created  by  will  with 
express  power  to  dispose  of  it  by  will,  it  has  been  held  that 
her  note  not  being  expressly  authorized  will  not  bind  her 
separate  estate.6  So,  where  she  gives  a  bill  of  exchange  or 
obtains  credit,  with  the  intention  of  charging  her  separate 
estate,  but  does  not  charge  it  as  provided  by  the  marriage 
settlement  creating  the  estate,  it  will  not  be  bound.6  But 
the  better  and  more  general  opinion,  at  least  in  the  United 
States,  is  that  the  wife's  power  over  her  separate  estate  is 
absolute,  except  where  expressly  restricted  by  the  instrument 
creating  it.7 

'Franklin  v.  Beatty,  27  Miss.  347  (1854). 

'Miller  v.Williamson,  5  Md.  219  (1853);  Tarr  v.  Williams,  4  Md.  Ch.  68 
(1853);  Williams  v.  Donaldson,  76.  414;  Doty  v.  Mitchell,  9  Sm.  &  M.  435 
(1848) ;  Montgomery  v.  Agricultural  Bank,  10  lb.  566;  Thomas  v.  Folwell,  2 
Whart.  11  (1836);  Wallaces  Oostar,  9  Watts  137  (1839);  Reid  v.  Lamar.  1 
Strobh.  Eq.  27;  Morgan  v.  Elam,  4  Yerg.  375  (1833);  Harris  v.  Harris,  7 
Ired.  Eq.  Ill  (1850);  Williamson  v.  Becklam,  8  Leigh  20  (1837);  Marshal1 
v.  Stevens,  8  Humph.  159  (1847) ;  Metcalf  v.  Cooke,  2  R.  I.  355  (1852). 

-Cooke  v.  Husbands,  11  Md.  492  (1857). 

♦Roberts  v.  Watkins,  36  L.  T.  (n.  s.)  799  (1877). 

6 Metcalf  v.  Cook,  2  R.  I.  355  (1852). 

«Doty  v.  Mitchell,  9  Sm.  &  M.  435  (1848) ;  Montgomery  v.  Agricultural 
Bank,  10  lb.  567  (1848). 

7Leaycraft  v.  Hedden,  3  Green  Ch.  512  (1845) ;  Jaques  v.  Methodist  Episc. 
Church,  17  Johns.  548  (1820),  reversing  3  Johns.  Ch.  78;  Kimm  v.  Weippert, 
46  Mo.  535  (1870) ;  Burnett  v.  Hawpe,  25  Gratt.  481  (1874).  But  in  Nebraska 
a  married  woman's  note  must  be  given  with  reference  to,  and  taken  on  the 


SEPARATE    ESTATE.  435 

§  302.  Separate  Estate — Express  Charge. — The  liability 
of  the  wife's  separate  estate  to  answer  for  her  debts  and  con- 
tracts is  more  plain,  where  it  is  expressly  charged  by  her 
with  payment  of  them.  And  her  separate  estate  will  be 
liable  in  equity  on  her  note  given  with  her  husband  for  his 
debts,  if  such  estate  be  expressly  charged,1  at  least  in  the 
absence  of  statutes  to  the  contrary.  And  even  where  the 
wife  is  prohibited  by  statute  from  binding  herself  for  her 
husband's  debts,  she  will  be  liable  on  a  note  given  with  her 
husband  to  pay  off  a  mortgage  on  his  lands,  where  she  ex- 
pressly charges  her  separate  estate,  the  benefit  to  her  dower 
interest  in  the  land  so  relieved  being  held  to  be  a  sufficient 
independent  consideration.2  So,  a  joint  note  of  a  husband 
and  wife  expressly  binding  "our  separate  and  individual 
estates,"  has  been  held  to  bind  a  wife's  separate  estate  in 
Maryland  in  equity,  even  prior  to  the  statute  of  I860.3  And 
it  has  been  held  in  North  Carolina  that  a  sealed  note  by  a 
husband  and  wife  referring  to  the  wife's  separate  estate  will 
be  binding  on  it  in  equity,  though  not  at  common  law.4  So, 
where  a  married  woman  has  by  will  charged  her  separate 
property  with  her  debts  generally,  it  will  be  liable  for  debts 
not  expressly  enumerated  and  charged.5 

In  New  York  it  has  been  held  that  a  wife's  separate  estate 
is  liable  for  her  note  given,  with  intention  to  charge  it,  in 
payment  of  her  husband's  note  originally  given  for  clothing 
purchased  for  their  children.6     So,  it  will  be  liable  on  her 

credit  of,  her  separate  estate,  Barnum  v.  Young,  10  Neb.  309  (1880).  A 
married  woman's  note  is  binding  on  her  separate  estate  in  California,  Alex- 
ander v.  Bouton,  55  Cal.  15  (1880);  and  such  note  will  be  construed  to 
relate  to  her  separate  property  generally  and  not  to  that  alone  which  is  de- 
scribed in  a  collateral  mortgage,  lb.  So,  a  married  woman's  note  binds  her 
separate  property  in  Missouri,  Boatman's  Sav.  Bank  v.  Collins,  75  Mo.  280 
(1882) ;  but  is  otherwise  null  and  void,  lb.  So,  too,  in  Vermont,  the  joint 
note  of  husband  and  wife  given  for  a  debt  created  by  her  for  the  benefit 
and  on  the  credit,  of  her  separate  estate,  Sargeant  "v.  French,  54  Vt.  384 
(1882). 

Bradford  v.  Greenaway,  17  Ala.  797  (1850). 

'Perkins  v.  Elliott,  8  C.  E.  Green  526  (.1872),  reversing  7  lb.  127. 

"Hall  v.  Eccleston,  37  Md.  510  (1872). 

♦Pippen  v.  Wesson,  74  N.  C.  437  (1876). 

'Owens  ii.  Dickenson,  1  Cr.  &  Ph.  48  (1840). 

•Francis  v.  Ross,  17  How.  Pr.  561  (1859). 


436  CAPACITY MARRIED    WOMEN. 

indorsement  of  a  note  of  her  husband  with  intention  of 
charging  it,  although  the  estate  be  not  described.1  And  if 
she  make  a  promissory  note  payable  "from  my  personal 
estate,"  this  will  be  equivalent  to  a  charge  of  her  separate 
estate.2 

§  303.  Effect  of  Express  Charge  on  Negotiability — Estop- 
pel— Form. — A  charge  of  a  wife's  separate  estate  contained 
in  a  bill  or  note  will  not  affect  its  negotiability.3  Nor,  on 
the  other  hand,  will  an  indorsement  by  her  containing  an 
express  charge  of  her  separate  personal  estate  amount  to  a 
mortgage  of  personal  security  within  the  meaning  of  the 
National  Bank  Act.4 

On  the  other  hand,  the  note  of  a  married  woman,  given 
under  duress  and  falsely  purporting  to  be  for  the  benefit  of 
her  separate  estate  when  it  is  not  so,  will  not  be  binding  upon 
her,  even  at  suit  of  a  bona  fide  holder  for  value.5  And  where 
a  married  woman  has  no  separate  estate,  she  cannot  by  ex- 
pressly charging  her  separate  estate  become  individually 
bound  for  the  debt  of  another  person.6 

A  memorandum  upon  a  married  woman's  note  charging 
her  separate  estate  is  a  part  of  the  note.7  And  where  a  wife 
gives  her  note  as  surety  for  her  husband  or  a  third  person, 
in  order  that  her  separate  estate  may  be  bound  by  it,  an  in- 
tention to  charge  it  should  appear  in  the  instrument,  or  it 
must  be  shown  to  have  been  given  for  the  direct  benefit  of 
such  estate.8 

In  general,  a  married  woman's  note  is  not  binding  upon 

^orn  Exch.  Ins.  Co.  v.  Babcock,  42  N.  Y.  613  (1870). 

*  First  Nat.  Bank  v.  Hurlburt,  22  Hun  310  (1880). 

8Loomis  v.  Ruck,  14  Abb.  Pr.  (n.  s.)  385  (1873). 

•Third  Nat.  Bank  v.  Blake,  73  N.  Y.  (1878). 

5Loomis  v.  Ruck,  56  N.  Y.  462  (1874). 

6  Wilson  S.  M.  Co.  v.  Fuller,  60  How.  Pr.  480  (1881). 

'Treadwell  v.  Archer,  76  N.  Y.  196  (1879). 

8  Yale  v.  Dederer,  22  N.  Y.  450  (1860) ;  S.  C,  18  N.  Y.  265;  S.  C,  68  N.  Y. 
329  (1877).  In  Upper  Canada,  under  the  Statute  of  1882,  a  married  woman 
can  bind  her  separate  estate  by  a  note  given  with  express  reference  to  it  for 
the  accommodation  of  her  husband,  Consolidated  Bank  v.  Henderson,  29 
Upper  Canada  C.  P.  549  (1879).  So,  too,  Frazee  v.  McFarland,  43  Up.  Can. 
Q.  B.  281  (1878),  where  credit  was  moreover  given  to  such  separate  estate. 


IMPLIED    CHARGE    OF    SEPARATE    ESTATE.  437 

her  in  New  York,  unless  made  a  charge  on  her  separate 
estate.1  So,  in  New  Hampshire,  if  given  for  labor  on  the 
farm  of  her  first  husband  and  renewed  after  her  second  mar- 
riage, it  will  not  be  binding  on  her  separate  estate,  unless  it 
appears  to  have  been  made  in  respect  to  it.2  In  Maryland 
the  intention  to  charge  her  separate  estate  must  appear  in 
the  instrument.3  So  in  Tennessee;4  and  in  Illinois.5  So, 
in  New  York,  a  wife's  separate  estate  will  not  be  liable  for 
ante-nuptial  debts  without  an  express  charge.6 

But  it  is  not  necessary  that  the  intention  to  charge  a  wife's 
separate  estate  should  appear  in  a  note,  if  it  be  contained  in 
a  written  declaration  attached  to  the  note  and  delivered  with 
it  as  one  instrument.7  And  it  has  been  held  sufficient  if 
shown  by  a  collateral  mortgage  upon  her  separate  property.8 
And  her  separate  estate  not  covered  by  the  mortgage  has 
been  held  liable  in  such  case  for  a  deficiency  after  sale  of  the 
mortgaged  premises.9 

§  304.  Implied  Charge  of  Separate  Estate. — It  is  necessary 
in  many  cases  to  the  validity  of  a  married  woman's  note,  as 
has  been  already  said,  that  there  should  be  both  a  separate 
estate  to  charge  and  an  intention  to  charge  it.10  The  inten- 
tion to  charge  it  will  often  be  implied.  Thus,  where  a  hus- 
band signs  a  note  as  "acting  trustee"  for  his  wife  by  her 
authority,  and  with  the  intention  of  charging  her  separate 
estate,  for  necessaries  furnished  to  her  while  an  infant  and 

^loomingdale  v.  Lisberger,  24  Hun  355  (1881). 

•Shannon  v.  Canney,  44  N.  H.  592  (1863). 

3K«»ontz  v.  Nabb,  16  Md.  549  (1860). 

4Kirby  v.  Miller,  4  Coldw.  3  (1867);  Cherry  v.  Clements,  10  Humph.  552 
(1850). 

'Williams  v.  Huguenin,  69  111.  214  (1873). 

•Vanderheyden  v.  Mallory,  1  N.  Y.  452  (1848). 

'Sherwood  v.  Archer,  10  Hun  73  (1877). 

'Alexander  v.  Bouton,  55  Cal.  15  (18S0) ;  especially  if  the  note  relates  to 
her  separate  estate,  Webb  v.  Hazelton,  4  Neb.  308  (1876).  But  in  Texas, 
notwithstanding  the  mortgage  on  her  separate  estate,  her  note  or  other  sim- 
ple contract  is  only  binding  so  far  as  given  for  necessaries  for  herself  or 
family  or  for  the  benefit  of  her  separate  estate,  Rhodes  v.  Gibbs,  39  Tex.  432 
(1873). 

•Ballin  v.  Dillaye,  37  N.  Y.  35  (1867). 

"•Cobine  v.  St.  John,  12  How.  Pr.  333  (1856). 


438  CAPACITY — MARRIED    WOMEN. 

before  her  marriage,  her  separate  estate  will  be  liable  for  the 
payment.1  It  has  been  held  in  New  York  that  to  bind  a 
wife's  separate  estate  the  intention  to  charge  it  must  be  ex- 
pressed or  inferable  from  the  direct  benefit  to  her.2  And 
the  intention  to  charge  her  estate,  e.  g.  for  goods  purchased, 
must  exist  at  the  time  of  making  the  contract  and  cannot  be 
found  first  in  some  subsequent  promise  so  to  charge  it.3 

But  it  is  not  in  general  necessary  that  the  charge  should 
be  made  in  so  many  words.  Thus,  an  agreement  on  the  part 
of  a  wife  to  pay  a  debt  out  of  her  separate  estate  will  amount 
in  equity  to  a  charge  of  the  estate.4  So,  an  intention  to 
charge  such  estate  may  be  presumed  from  her  acknowledg- 
ment of  the  correctness  of  the  account  against  her,  for  the 
payment  of  which  the  promise  is  made.5  On  the  other  hand, 
no  intention  to  charge  a  wife's  separate  estate  will  be  implied 
from  her  mere  agreement  to  pay  for  nursing  and  care  of  her 
father.6 

§  305.  Charge  Implied  from  Living  Separate. — As  has  been 
said,  where  a  wife  has  a  separate  estate  and  is  living  separate 
from  her  husband,  she  is  liable  at  common  law  on  a  bond 
given  by  her.7  So,  under  like  circumstances,  for  solicitor's 
fee,  without  either  express  agreement  to  pay  or  express 
charge.8  And  especially  where  under  the  same  circum- 
stances the  credit  has  been  given  to  the  wife,  an  intention  on 
her  part  to  charge  her  separate  estate  will  be  presumed.* 
And,  in  general,  where  a  wife  has  a  separate  estate  and  lives 
separate  from  her  husband,  an  intention  to  charge  her  estate 
may   be   presumed  from   the  circumstances  of   the   case;10 

1  Baker  v.  Gregory,  28  Ala.  544  (1856). 
2Owen  v.  Cawley,  36  Barb.  52  (1861). 
"White  v.  Story,  43  Barb.  124  (1864). 

4Oakley  v.  Pound,  1  McCarter  178  (1862) ;  Leaycraft  v.  Hedden,  3  Green 
Ch.  542  (1845). 
6Collins  v.  Rudolph,  19  Ala.  616  (1851). 
"Manchester  v.  Sahler,  47  Barb.  155  (1866). 
'Corbett  v.  Poelnitz,  1  T.  R.  5. 

8  Murray  v.  Barlee,  3  My.  &  K.  209  (1834). 

9  Coleman  v.  Wooley,  10  B.  Mon.  320  (1850). 
"Conlin  v.  Cantrell,  64  N.  Y.  217  (1876). 


CHARGE    IMPLIED    FROM    GIVING    NOTE    OR    BILL.       439 

especially  where  the  wife  is  also  doing  business  for  herself  as 
a  sole  trader.1 

§  306.  Charge  Implied  from  Giving  Note  or  Bill. — And 
where  a  wife  has  a  separate  estate,  an  intention  to  charge  it 
has  been  presumed  in  many  cases  merely  from  her  giving  a 
note  or  bill.2  But  even  in  such  case  it  has  been  held  that 
the  contract  must  be  shown  by  the  instrument  itself  and  by 
that  only.3  The  presumption  is,  however,  not  lessened  by 
the  fact  that  the  note  has  been  executed  in  blank.*  It  has, 
on  the  other  hand,  been  denied  that  any  such  presumption 
is  to  be  made  from  the  mere  note  or  bill  of  a  married  woman  ;5 
although  the  weight  of  authority  appears  to  be  in  favor  of 
the  rule  as  first  stated.  And  the  same  presumption  of  a  charge 
has  been  made  in  the  case  of  a  married  woman's  indorse- 
ment.6    Under  the  statute  of  Wisconsin  her  indorsement  is 

Johnson  v.  Gallagher,  30  L  J.  Ch.  298  (1861) ;  S.  G,  3  DeG.  F.  &  J.  513. 
In  this  case,  however,  the  bill  was  dismissed  because  the  separate  estate  had 
been  disposed  of.  "It  is  perfectly  clear,"  said  Turner,  L.  J.,  p.  515,  "that 
when  a  woman  has  property  settled  to  her  separate  use,  she  may  bind  that 
property  without  distinctly  stating  that  she  intends  to  do  so.  She  may  enter 
into  a  bond,  bill,  promissory  note  or  other  obligation  which,  considering  her 
state  as  a  married  woman,  could  only  be  satisfied  by  means  of  her  separate 
estate,  and  therefore  the  inference  is  conclusive  that  there  was  an  intention, 
and  a  clear  one  on  her  part,  that  her  separate  estate,  whicb  would  be  the 
only  means  of  satisfying  the  obligation  into  wliich  she  entered,  should 
be  bound."  This  language  is  cited  with  approval  by  James,  L.  J.,  in  Lon- 
don Chartered  Bank  v.  Lempriere,  L.  R.  4  P.  0.  593  (1873),  dissenting  from 
Shattock  v.  Shattock,  L.  R.  2  Eq.  182  (1866),  which  restricted  such  implica- 
tion to  cases  where  the  wife  had  an  absolute  interest  in  the  property,  with 
power  to  charge  it  in  any  manner  she  pleased. 

'Coats  v.  Robinson,  10  Mo.  757  (1847) ;  Dallas  v.  Head,  32  Ga.  604  (1861); 
Bachelder  v.  Sargent,  47  N.  H.  262  (1867) ;  Barnes  v.  De  France,  2  Col.  294 
(1874) ;  Chapman  v.  Foster,  6  Allen  136  (1863) ;  Pope  v.  Hooper,  6  Neb.  178 
(1877);  Whitesides  v.  Cannon,  23  Mo.  473  (1856);  Lillard  v.  Turner,  16  B. 
Mon.  374  (1855) ;  approved  in  Burch  v.  Breckinridge,  lb.  487.  And  tbis  has 
been  applied  even  to  notes  signed  or  indorsed  as  surety,  Jarman  v.  Wilker- 
son,7  B.  Mon.  293  (1847):  Bell  v.  Kellar,  13  lb.  381  (1852),  Marshall,  J., 
saying  in  tins  case,  "If  she  has  a  separate  estate  and  does  any  specific  act 
which  directly  involves  and  pledges  her  credit,  it  must  be  referred  to  her 
separate  estate,  which  she  can  bind,  and  on  which  alone  her  credit  rests. 
And  such  act  must  be  considered  as  implying  a  charge  upon  her  estate." 
So,  in  Kansas,  although  given  in  payment  of  the  husband's  debts,  Deering 
v.  Boyle,  8  Kans.  525  (1871)  ;  Wickes  v.  Mitchell,  9  lb.  80  (1872). 

•"Metropolitan  Bank  v.  Taylor,  62  Mo.  338  (1876). 

4 Morrison  v.  Thistle,  67  Mo.  596  (1878). 

5 Knox  v.  Jordan,  5  Jones  Eq.  175  (1859) ;  Staley  v.  Hamilton,  19  Fla.  275 
(1882). 

6  Bell  v.  Kellar,  13  B.  Mon.  381  (1852);  Frank  v.  Lilienfeld,  33  Gratt.  377 

(1880). 


440  CAPACITY MARRIED    WOMEN. 

not  binding  upon  her  at  law  and  is  only  binding  in  equity 
upon  her  separate  estate  in  case  of  separate  benefit,  an  ex- 
press charge,  or  credit  given  directly  to  her.1  And  where 
her  indorsement  is  placed  for  accommodation  on  her  hus- 
band's note,  an  intention  to  charge  her  separate  estate  will 
not  be  presumed.2 

But  in  equity,  and  in  the  absence  of  statutory  require- 
ments as  to  an  express  charge,  a  wife's  separate  estate  will  be 
liable  as  we  have  seen  for  the  payment  of  her  bond  or  other 
contract.3  In  such  case  an  intention  to  charge  her  estate  is 
to  be  presumed  from  the  instrument  itself  and  the  very  fact 
of  her  giving  it.4  And  in  England  this  has  been  held  to  be 
true  in  a  contract  for  subscription  to  stock.5 

So,  in  England,  since  the  Married  Woman's  Act  of  1870, 
a  wife's  separate  estate  has  been  held  liable  without  any  ex- 
press charge  for  the  payment  of  a  joint  and  several  note 
given  by  herself  and  her  husband,  the  husband  being  in- 
solvent.6 And  in  the  United  States  it  has  been  held  in 
many  cases  that  an  intention  to  charge  her  separate  estate  is 
to  be  presumed  from  the  wife's  giving  a  joint  note  with  her 
husband;7  although  such  note  has  been  given  to  pay  off  a 

Glanders  v.  Abbey,  6  Biss.  C.  C.  16  (1874).  See,  too,  Wisconsin  Statute 
of  1860;  Conway  v.  Smith,  13  Wis.  125. 

2 Levi  v.  Earl,  30  Ohio  St.  147  (1876). 

'Norton  v.  Turvil,  2  P.  Wm.  144;  Peacock  v.  Monk,  2  Ves.  193 ;  Hulme  v. 
Tenant,  1  Bro.  C.  C.  16  (1778) ;  S.  C,  1  White  &  T.  L.  C.  Eq.  679;  Leaycraft 
v.  Hedden,  3  Green  Ch.  542  (1845). 

♦Burnett  v.  Hawpe,  25  Gratt.  488  (1874);  Garland  v.  Pamplin,  32  lb.  303 
(1879);  Darnall  v.  Smith,  26  76.  884  (1875).  In  this  latter  case  the  order 
given  was  on  a  particular  estate  which  was  held  to  be  primarily  and  not 
exclusively  liable. 

bIn  re  Leeds  Banking  Company,  Matthewman's  Case,  L.  R.  3  Eq.  781 
(1866).  Here  the  decisive  circumstances  showing  intention  seemed  to  be 
her  acceptance  of  shares  allotted  to  "  the  executors  of"  her  former  husband, 
through  whom  she  had  other  shares,  and  her  making  payment  on  them  by 
check  on  a  bank  account  kept  in  her  individual  name.  But  see,  contra, 
Rice  v.  Railroad  Co.,  32  Ohio  St.  380  (1877),  where  it  was  held  that  such  in- 
tention must  appear  in  the  instrument.  In  this  case,  however,  there  was 
no  separate  benefit  to  the  wife  or  her  estate. 

BDavies  v.  Jenkins,  L.  R.  6  Ch.  D.  728*  (1877).      ■ 

'Patton  v.  Kinsman,  17  Iowa  428  (1864);  Cowles  v.  Morgan,  32  Ala.  535 
(1859) ;  Avery  v.  Van  Sickle,  10  Cent.  L.  J.  33 ;  35  Ohio  St.  270  (1879) :  Schaf- 
roth  v.  Ambs,  46  Mo.  114  (1870) ;  Whitesides  v.  Cannon,  23  Mo.  457  (1856)  ; 
Ozeley  v.  Ikelheimer,  26  Ala.  332  (1855) ;  Caldwell  v.  Sawyer,  30  lb.  283 


IMPLICATION    FROM    GIVING    NOTE.  441 

judgment  against  the  husband.1  On  the  other  hand,  in  an 
earlier  case  in  England,  such  a  note,  given  for  advances  to 
the  husband,  was  held  not  to  be  a  charge  on  the  wife's  sepa- 
rate estate,  but  to  be  an  equitable  appointment,  to  be  satisfied 
out  of  the  rents  and  profits  of  her  estate.2 

§  307.  Implication  from  Giving  Note — Restricted  to  Cases 
of  Benefit. — As  in  the  case  of  her  sole  note,  where  the  joint 
note  is  given  for  her  husband's  accommodation  or  in  payment 
of  his  debts,  no  intention  to  charge  her  separate  estate  is  to 
be  presumed,  if  none  is  expressed.3  But  a  contract  for  her 
own  benefit  will  bind  her  separate  estate.4  The  plaintiff, 
however,  must  either  prove  that  such  contract  was  for  her 
separate  benefit  or  that  she  charged  her  separate  estate  ex- 
pressly for  it.5 

Where  she  purchased  property  and  gave  her  note  for  it, 
h-er  intention  to  bind  her  separate  property  by  the  note 
has  been  generally  presumed  in  recent  cases.6  And  this  pre- 
sumption was  held  to  be  conclusive  in  a  case  where  she 
gave  a  note  and  mortgage  jointly  with  her  husband  for  the 
purchase-money  of    land    conveyed   to    her.7     But   it    was 

(1857) ;  Schaeffer  v.  Ivory,  7  Mo.  App.  461  (1879).  But  after  divorce  granted 
a  court  of  equity  refused  in  Missouri  to  enforce  such  a  note  against  the 
wife's  separate  property,  Hooton  v.  Ransom,  6  Mo.  App.  19  (1878). 

'Nunn  v.  Givhan,  45  Ala.  370  (1871). 

2  Field  v.  Sowle,  4  Rues.  112  (1827). 

'Frecking  v.  Holland,  1  J.  &  S.  499  (1871);  S.  C,  53  N.  Y.  422;  Knox  v. 
Jordan,  5  Jones  Eq.  175  (1859) ;  Johnson  v.  Malcolm,  6  lb.  120  (1860) ;  Sauls- 
bury  v.  Weaver,  59  Ga.  254  (1877) ;  Bartington  v.  Bradley,  16  La.  An.  310 
(1861). 

4  Van  Allen  v.  Humphrey,  15  Barb.  555  (1853).  But  see,  contra,  Jones  v. 
Crossthwaite,  17  Iowa  393  (1864). 

&White  v.  McNett,  33  N.  Y.  371  (1865). 

•Huff  v.  Wright,  39  Ga.  41  (1869) ;  Allen  v.  Fuller,  118  Mass.  402  (1875) ; 
Stevens  v.  Reed,  112  Mass.  515  (1873) ;  Stewart  v.  Jenkins,  6  Allen  300  (1863) ; 
Webb  v.  Hoselton,  4  Neb.  308  (1876). 

'Avery  v.  Van  Sickle,  35  Ohio  St.  270  (1879).  "  Where  a  married  woman," 
said  Boynton,  J.,  p.  276,  "acquires  the  title  to  property  by  purchase,  which 
becomes,  by  force  of  the  statute,  her  separate  estate,  and  executes  her 
promissory  note  therefor,  an  implication  arises,  in  the  absence  of  proof 
showing  a  different  understanding,  that  she  thereby  intended  to  charge  her 
•separate  estate  with  its  payment."  Nor  is  this  liability  changed  by  her 
.giving  a  mortgage  as  collateral,  lb.;  Rogers  v.  Ward,  8  Allen  387;  Ballin  v. 
Dillaye,  37  N.  Y.  35;  nor  merged  in  a  judgment  on  the  note  against  the 
husband  alone,  Avery  v.  Van  Sickle,  supra. 


442  CAPACITY MARRIED    WOMEN. 

denied  altogether  in  another  and  similar  case,  where  it  was 
held  that  no  other  security  than  that  given  was  intended,  and 
that  the  intention  to  charge  her  separate  estate  must  either 
be  expressed  or  implied  in  the  contract.1  This  has  been  also 
declared  to  be  the  rule  in  Tennessee,  in  the  case  of  a  joint 
note  given  by  husband  and  wife  for  goods  purchased.2 

§  308.  Implied  Charge — Where  Credit  Given  Wife. — The 
fact  that,  in  the  contract  of  a  married  woman,  credit  has  been 
given  only  to  her  and  her  estate  will  be  considered  as  an 
element  of  importance,  and  her  separate  estate  is  often  held 
in  equity  on  this  ground  to  be  charged  with  the  debt  con- 
tracted.3 This  was  held  to  be  the  rule  in  New  York,  before 
the  Act  of  1860,  where  a  note  of  the  husband  was  guaranteed 
by  the  wife  and  discounted  by  the  plaintiff  on  the  credit  of 
her  separate  estate.4  It  was  held  sufficient  to  bind  a  married 
woman's  separate  property  for  her  contract,  if  either  her 
separate  benefit  or  a  separate  credit  to  her  be  shown.5  And 
it  has  been  held  in  New  York,  in  a  recent  case,  that  the  fact 
of  a  note  being  discounted  on  the  credit  of  the  wife's  separate 
estate  will  render  such  estate  liable,  without  any  intention  to 
charge  such  estate  or  any  proof  of  benefit  to  her  or  to  it.6 
And  this  has  been  held  to  be  true  of  a  note  given  by  hus- 
band and  wife  for  family  supplies  sold  to  them  on  the  credit 
of  a  farm,  which  belonged  to  the  wife  and  was  carried  on 
jointly  by  both.7  And  even  where  the  wife  has  no  other 
separate  estate  she  is  liable  for  goods  purchased  by  her  on 
her  own  credit,  at  least  in  New  York;8  and  in  Massachu- 

'Kimra  v.  Weippert,  46  Mo.  546  (1870),  Wagner,  J.,  saying:  "The  intent 
to  be  of  any  importance  must  be  a  part  of  the  contract;  that  is,  the  true 
meaning  of  the  contract,  when  justly  interpreted,  must  be  that  the  debt 
which  it  creates  should  be  a  charge  upon  the  estate." 

'Cherry  v.  Clements,  10  Humph.  552  (1850) ;  Litton  v.  Baldwin,  8  lb.  209. 

3Noyes  v.  Blakeman,  3  Sandf.  535  (1850).  But  the  interest  of  a  cestui  qu» 
trust  is  not  such  an  estate,  Noyes  v.  Blakeman,  6  N.  Y.  567  (1852). 

4Sexton  v.  Fleet,  2  Hilt.  477  (1859).     ■ 

5Dickerman  v.  Abrams,  21  Barb.  551  (1854). 

6Quassaic  Nat.  Bank  v.  Waddell,  1  Hun  125  (1874) ;  S.  C,  3  T.  &  C.  680.. 

7Krouskop  v.  Shontz,  51  Wis.  204  (1881). 

"Crisfield  v.  Banks,  24  Hun  159  (1881). 


CHARGE    IMPLIED    FROM    SEPARATE   BENEFIT.  443 

setts,  under  like  circumstances,  on  a  note  given  for  the  goods.1 
So,  if  a  wife  is  living  separate  from  her  husband,  he  living 
abroad,  her  note  discounted  on  her  individual  credit  will  be 
considered,  in  equity,  as  intending  to  bind  her  separate  estate 
and  will  bind  it.2 

§  309.  Charge  Implied  from  Separate  Benefit. — The  benefit 
to  a  wife's  separate  estate  is  an  element  of  great  importance 
in  equity  in  determining  its  liability.  Her  separate  estate  is 
liable  in  equity  for  money  advanced  or  loaned  for  the  sepa- 
rate benefit  of  herself  or  her  estate;3  even  though  the  loan 
is  made  by  her  husband  ;4  and  though  her  separate  property 
is  managed  by  her  husband  and  the  proceeds  of  the  loan  are 
paid  to  him.5  So,  her  separate  estate  will  be  liable  for  work 
done  on  it  for  its  benefit  at  her  request;6  or  for  goods  pur- 
chased for  its  benefit;7  even  though  her  husband  has  given 
his  note  for  such  purchases.8 

So,  a  wife's  separate  estate  will  be  liable  on  her  covenants 
relating  to  it  in  a  conveyance  of  it  by  her.9  But  where  she 
has  sold  land  and  taken  back  a  mortgage  for  part  of  the 
purchase-money  and  assigned  that  with  a  guaranty,  it  has 
been  held  that  her  separate  estate  was  not  liable  on  such 
guaranty  without  evidence  of  an  express  charge  or  of  sepa- 

1  Allen  v.  Fuller,  118  Mass.  402  (1875} . 

2McHenry  v.  Davies,  L.  R.  10  Eq.  88  (1870).  In  this  case  the  maker  of 
the  note,  to  whom  credit  was  given  by  a.  banker  in  Paris,  was  to  all  appear- 
ance, and  so  far  as  he  knew,  unmarried.  The  Master  of  the  Rolls  adopts 
the  expression  of  Turner,  L.  J.,  in  Johnson  v.  Gallagher,  3  DeG.  F.  &  J.  521, 
that  "  the  court  is  bound  to  impute  to  her  the  intention  to  deal  with  her 
separate  estate  unless  the  contrary  is  clearly  proved." 

"Pentz  v.  Simonson,  2  Beas.  232  (1861). 

1  Gardner  v.  Gardner,  7  Paige  112  (1838),  affirmed  22  Wend.  526. 

5Smith  v.  Kennedy,  13  Hun  9  (1878). 

•Colvin  v.  Currier,  22  Barb.  371  (1856). 

'North  Am.  Coal  Co.  v.  Dyett,  7  Paige  9  (1837),  affirmed  20  Wend.  570 
(1838). 

'Cater  v.  Eveleigh,  4  Desaus.  19  (1809);  Guion  v.  Dohertv,  43  Miss.  538 
(1871);  Clopton  v.  Matheng,  48  lb.  285  (1873).  And  it  seems  that  in  Missis- 
sippi contracts  for  such  supplies  may  be  made  by  either  husband  or  wife 
without  consent  of  the  other  and  bind  the  wife's  separate  estate,  Clopton  v. 
Matheng,  supra. 

•Kolls  v.  De  Lever,  41  Barb.  208  (1864).  But  such  liability  is  confined  ta 
covenants  made  for  the  separate  benefit  of  herself  or  her  estate,  Coakley  v. 
Chamberlain,  38  How.  Pr.  483  (1869). 


444  CAPACITY MARRIED    WOMEN. 

rate  benefit  to  her  estate.1  On  the  other  hand,  liability  of 
her  separate  estate  in  equity  for  the  payment  of  a  note  given 
for  her  separate  benefit  remains  unchanged  in  New  York  by 
the  acts  of  1848  and  1849.2  On  the  ground  of  separate 
benefit,  a  wife's  estate  has  been  held  liable  for  her  draft.3 
So,  for  her  note  given  for  work  on  land  held  jointly  by  her- 
self and  husband  as  co-tenants.4  But  not  without  proof  of 
separate  benefit  or  an  intention  to  charge  her  separate  estate 
for  a  note  given  in  the  joint  business  of  herself  and  hus- 
band.5 

§  310.  Charge  Implied  from  Benefit — Notwithstanding  Joint 
Note  with  Husband. — In  equity  a  wife's  separate  estate  is  lia- 
ble for  the  joint  bond  of  herself  and  husband  given  for  the 
wife's  debt,6  or  their  joint  note  given  for  building  or  other 
improvements  on  the  wife's  land.7  But  in  Kentucky  it  has 
been  held  that  the  wife's  general  estate  will  be  liable  on  such 
a  note  without  express  charge,  but  not  her  separate  estate.8 
Her  separate  estate  is,  however,  liable  for  cattle  or  imple- 
ments purchased  for  her  farm  and  secured  by  the  joint  note 
of  herself  and  husband,9  or  by  her  individual  note,10  or  with- 
out any  note.11  But  in  Texas,  where  the  joint  note  of  hus- 
band and  wife  was  given  for  such  supplies,  it  was  held  that 
they  were  not  for  the  benefit  of  the  wife's  separate  property 
within  the  meaning  of  the  statute.12 

'White  v.  McNett,  33  N.  Y.  371  (1865),  Denio,  C.  J.,  diss. 
2 Coon  v.  Brook,  21  Barb.  546  (1856). 

3 Brooks  v.  Wigginton,  14  La.  An.  687  (1859);  although  given  without  the 
authorization  of  her  husband,  lb. 
4 Burr  v.  Swan,  118  Mass.  588  (1875). 
"Palen  v.  Lent,  5  Bosw.  713  (1860). 

6  Forrest  v.  Robinson,  4  Port.  44  (1836). 

7  Parker  v.  Kane,  4  Allen  346  (1862).  And  in  Louisiana,  on  her  own  note, 
if  authorized  by  her  husband  to  give  it,  Jordan  v.  Anderson,  29  La.  An.  749 
(1877). 

"Marshall  v.  Miller,  3  Mete.  333, (Ky.  1860).  The  note  in  this  case  was 
given  for  necessary  supplies  to  the  wife's  farm,  on  which  husband  and  wife 
and  their  family  lived. 

'Mitchell  v.  Smith,  32  Iowa  484  (1871). 

10Batchelder  v.  Sargent,  47  N.  H.  262  (1867). 

"McCormick  v.  Holbrook,  22  Iowa  487  (1867). 

"Wallace  v.  Finberg,  46  Tex.  35  (1876). 


SEPARATE    BENEFIT    MUST    APPEAR.  445' 

§  311.  Charge  Implied  from  Purchase  of  Separate  Prop- 
erty.— Where  a  wife  has  purchased  land  and,  in  part  pay- 
ment for  it,  indorsed  a  note  given  by  the  vendor  to  a  third 
person,  and  has  afterward  reconveyed  the  land  to  the  vendor,, 
her  agreement  to  pay  the  note  is  without  any  separate  benefit 
to  her  and  will  not  bind  her  separate  estate.1  Although 
where  she  has  purchased  a  farm  and  manages  it  as  her  own, 
her  note  given  in  payment  for  it  is  for  her  separate  benefit 
and  renders  her  estate  liable.2  But  it  has  been  held  in  New 
Hampshire  that  her  separate  estate  will  not  be  liable  on  her 
note  given  for  money  borrowed  and  used  by  her  to  purchase 
land  for  her  separate  property.3  So,  in  Iowa  it  has  been 
held  that  a  contract  for  the  purchase  of  real  estate  is  not  "  in 
regard  to  her  separate  property  "  within  the  meaning  of  the 
statute.4  On  the  other  hand,  a  wife's  separate  estate  has  been 
held  to  be  presumptively  benefited  and  liable  on  her  note 
given  for  the  purchase  of  stock;5  or  of  a  piano;6  or,  given 
with  her  husband,  in  payment  of  a  store  bill;7  or,  by  her- 
self alone,  for  family  supplies.8  And,  by  force  of  the  statute, 
in  Iowa  even  for  goods  sold  for  family  use  to  the  husband.9 
And  in  Texas  for  such  goods  sold  to  the  husband,  he  being 
insolvent.10  But  in  New  York  such  liability  for  goods  pur- 
chased by  her  husband  exists  only  where  he  has  acted  as  her 
agent.11 

§  312.  Separate  Benefit  Must  Appear. — The  mere  fact  that 
money  has  been  paid  at  the  wife's  request  will  not  be  suffi- 

'Atkinson  v.  Richardson,  74  N.  C.  455  (1876). 

2 Chapman  v.  Foster,  6  Allen  136  (1863) ;  Stewart  v.  Jenkins,  76.  300. 

3Ames  v.  Foster,  42  N.  H.  381  (1861). 

•Jones  v.  Crossthwaite,  17  Iowa  393  (1864). 

5  Williams  v.  King,  43  Conn.  569  (1876). 

6 Phillips  v.  Graves,  20  Ohio  St.  371  (1870). 

7  Williams  v.  Urmston,  35  Ohio  St.  296  (1880). 

"Collins  v.  Lavenberg,  19  Ala,  682  (1851). 

9  Finn  v.  Rose,  12  Iowa  565  (1861) ;  Iowa  Code  \  1455. 

,0Brown  v.  Ector,  19  Tex.  346  (1857) ;  Texas  Statute  of  1848;  Hart  Dig.  gg 
2423,  2424.  But  it  is  not  sufficient,  for  this  purpose  to  aver  that  a  joint  note 
was  made  by  a  husband  and  wife  for  the  purchase  of  family  supplies  by  the 
wife,  Laird  v.  Thomas,  22  Tex   276  (1858). 

11  De  Mott  v.  McMullen,  8  Abb.  Pr.  (n.  s.)  335  (1869) ;  N.  Y.  Act  of  1860  c 
90  3  1. 


446  CAPACITY MARRIED    WOMEN. 

cient  of  itself  to  bind  her  separate  estate  without  evidence 
that  it  was  for  such  estate,1  or  for  her  separate  benefit.2  So, 
in  Louisiana,  her  note  is  void  unless  it  be  shown  that  she 
has  a  separate  estate  and  that  the  note  was  given  for  her 
separate  benefit.3  So,  in  Michigan,  though  a  note  be  ex- 
pressed to  be  for  money  loaned  her,  it  will  not  render  her 
liable  without  evidence  of  its  relating  to  or  benefiting  her 
separate  property.4  And  the  words  "  value  received  "  will 
not  relieve  the  holder  from  the  burden  of  proving  benefit  to 
the  wife.5  This  is  true  especially  in  the  case  of  a  holder 
having  notice  of  the  actual  state  of  things,  and  the  payee's 
•declarations  to  him  are  admissible  as  evidence  of  such 
-notice.6 

The  defense  to  a  married  woman's  note  on  the  ground  of 
want  of  separate  benefit  to  her  cannot  now,  it  seems,  be  set 
up  in  Louisiana  against  a  bona  fide  holder  for  value  before 
maturity;7  although  it  was  formerly  held  otherwise,  as  a 
principle  of  the  Spanish  law,  in  the  case  of  a  joint  note  of 
the  husband  and  wife,  which  acknowledged  the  borrowing 
of  the  money  for  her  separate  use  and  was  in  the  hands  of  a 
bona  fide  holder  for  value.8 

But  it  is  immaterial  whether  the  funds  borrowed  for  the 
avowed  benefit  of  a  wife's  separate  estate  have  been  so  used, 
if  the  note  was  given  for  such  express  purpose.9  Under  the 
Pennsylvania  statute,  however,  her  separate  estate  will  not 
be  liable  upon  a  note  if  the  consideration  borrowed  expressly 
for  such  estate  has  been  diverted.10 

1  Wright  v.  Dresser,  110  Mass.  51  (1872). 

2Ledeliey  v.  Powers,  39  Barb.  555  (1863) ;  S.  C,  25  How.  Pr.  240. 
3 Graham  v.  Thayer,  29  La.  An.  75  (1877) ;  Urquhart  v.  Thomas,  24  lb.  95 
(1872). 

4  Johnson  v.  Sutherland,  39  Mich.  579  (1878). 

5  Tracy  v.  Keith,  11  Allen  214  (1865). 
6Pilcher  v.  Kerr,  7  La.  An.  144' (1852). 
'Reardon  v.  Moriarty,  30  La.  An.  120  (1878). 

"Beauregard  v.  Eimer,  7  La.  An.  293  (1852),  the  court  saying:  "It  is  a 
principle  that  has  come  down  to  us  from  the  laws  of  Spain." 

9McVey  v.  Cantrell,  70  N.  Y.  295  '(1877). 

"Heugh  v.  Jones,  32  Penna.  St.  432  (1859).  Her  statutory  liability  for 
u  debts  contracted  by  herself"  (Act  of  1848)  extends  only  to  the  following: 


SEPAEATE    BENEFIT    MUST    APPEAR.  447 

And,  in  general,  where  a  wife's  note  is  given  for  a  loan 
and  the  money  has  been  paid  to  her  husband,  no  separate 
benefit  appearing,  her  separate  estate  will  not  be  liable  ;x  even 
though  the  husband,  obtaining  the  money  on  such  a  note, 
has  represented  it  to  be  for  the  wife's  separate  benefit.2  And 
in  New  York,  as  the  law  now  stands,  a  married  woman's 
note  to  her  husband's  order  is  presumptively  void,  and  it 
must  be  proved  that  she  had  a  separate  estate  and  gave  the 
note  to  benefit  or  charge  it.3  In  Mississippi,  even  where  the 
husband  is  his  wife's  agent  managing  her  plantation,  and 
gives  notes  as  such,  it  must  be  proved  that  the  money  bor- 
rowed was  actually  used  for  necessary  supplies,  or  otherwise 
for  the  benefit  of  her  separate  property,  in  order  to  render 
her  liable.4  And  this  is  so  in  Louisiana,  where  the  wife  her- 
self gives  the  note  with  her  husband's  authority,  but  without 
the  statutory  authorization  of  a  judge.5  To  make  her  notes 
valid  it  must  there  be  shown  that  she  was  authorized  by  her 
husband  and  that  the  debt  was  for  her  separate  benefit.6 
And,  in  Mississippi,  to  render  her  separate  estate  liable  on 
a  joint  note  given  with  her  husband  for  money  borrowed, 
her  separate  benefit  must  be  clearly  shown.7  This  is  alsc 
true  in  Louisiana,  where  she  had  authorization  to  give  notes 
and  to  mortgage  her  separate  property  for  certain  purposes 
and  amounts,  and  made  notes  and  mortgages  for  other  amount 
and  purpose.8     In  Texas  she  can   only   bind  her  separate 

"1st.  Debts  contracted  before  marriage  whilst  she  was  competent  to  con- 
tract or  afterwards  as  a  feme  sole  trader.  2d.  Debts  for  necessaries  after  hei 
husband  has  deserted  her  or  neglected  and  refused  to  support  her.  3d.  And 
possibly  debts  contracted  for  the  improvement  of  her  separate  estate  where 
the  money  is  so  applied,"  lb. 

^endergastv.  Borst,  7  Laus.  489  (1872). 

■  Deck  v.  Johnson,  2  Keyes  34S  (1866). 

"Second  Nat.  Bank  v.  Muller,  63  N.  Y.  639  (1875). 

*Wright  v.  Walton,  56  Miss.  1  (1878). 

*Adams  v.  Curry,  15  La.  An.  485  (1860)  ;  Hardin  v.  Wolf,  29  La.  An.  333 
(1877).  And  by  Louisiana  law  a  wife's  separate  property  is  liable  for  her 
proportion  of  the  household  expenses  and  for  the  whole  of  such  expenses, 
if  her  husband  is  unable  to  pay  them,  lb. 

"Thomson  v.  Chick,  19  La.  An.  206  (1867). 

'Stokes  v.  Shannon,  55  Miss.  583  (1878). 

•Conrad  v.  Le  Blanc,  29  La.  An.  123  (1877). 


448  CAPACITY MARRIED    WOMEN. 

property  by  simple  coutract,  alone  or  jointly  with  her  hus- 
band, for  necessaries  for  herself  or  her  family  or  for  her 
separate  property.1 

§  313.  Separate  Benefit — Presumption  to  Contrary. — In 
New  York,  in  the  absence  of  proof  of  her  separate  benefit, 
a  joint  bond  and  mortgage  with  her  husband  will  be  pre- 
sumed to  be  for  his  debt  and  benefit.2  And  her  separate 
estate  will  not  be  liable  for  such  debt  and  benefit  without 
benefit  to  herself.3  So,  in  Ohio,  her  separate  estate  will  not 
be  bound  by  her  indorsement  as  surety  for  her  husband;* 
nor,  in  North  Carolina,  by  her  note  as  such  surety  without 
reference  to  her  separate  estate  and  without  consent  of  her 
husband,  she  not  being  a  sole  trader.5 

And,  in  general,  a  wife's  separate  estate  will  not  be  bound 
by  the  joint  note  of  husband  and  wife  executed  by  her  as 
surety;6  nor,  in  the  absence  of  proof  of  separate  benefit,  by 
her  note  and  mortgage  given  for  a  loan  to  her  husband.7  In 
Kansas,  however,  where  a  wife's  note  is  given  for  her  hus- 
band's debt,  her  intention  to  charge  her  separate  estate  will 
be  presumed.8  So,  in  Alabama,  where  she  has  given  a  joint 
note  with  her  husband  in  settlement  of  a  judgment  against 
him.9  And,  in  New  York,  where  she  has  given  such  a  joint 
note  with  him,  as  a  surety  for  him,  expressly  making  it  a 
"lien  and  claim"  against  her  separate  estate,  such  separate 
estate  as  she  may  have  at  the  time  judgment  is  rendered  will 
be  liable  for  its  payment.10    But  where  there  is  no  expression 

Rhodes  v.  Gibbs,  39  Tex.  432  (1873). 

"Goodall  v.  McAdam,  14  How.  Pr.  385  (1857). 

sLedlie  v.  Vrooman,  41  Barb.  109  (1863). 

4 Levi  v.  Earl,  30  Ohio  St.  147  (1876). 

5  Webb  v.  Gay,  74  N.  C.  447  (1876). 

6Saulsbury  v.  Weaver,  59Ga.  254  (1877) ;  Bartington  v.  Bradley,  16  La.  An. 
310  (1861). 

7Taylor  v.  Carlile,  2  La.  An.  579  (1847);  La.  C.  C.  §  2412;  Thomson  v. 
Chick,  19  La.  An.  206  (1867) ;  Lee  v.  Cameron,  14  lb.  711  (1859).  Although 
the  note  may  have  been  authorized  bv  her  husband,  Perry  v.  Thompson,  3 
La.  An.  188  (1848) ;  Bowles  v.  Turner,  15  lb.  352  (1860). 

"Deering  v.  Boyle,  8  Kans.  525  (1871) ;  Wickes  v.  Mitchell,  9  lb.  80  (1872). 

9Nunn  v.  Givhan,  45  Ala.  370  (1871). 

10Todd  v.  Ames,  60  Barb.  454  (1871). 


SEPARATE    BENEFIT.  449 

amounting  to  a  charge,  and  no  benefit  to  her  or  her  estate,  it 
will  not  be  bound  by  such  a  note;1  even  though  the  money, 
obtained  on  such  note  for  the  purpose  of  paying  her  hus- 
band's debts,  be  paid  to  and  acknowledged  by  her.'2  She 
may,  however,  be  estopped  by  her  fraud  from  availing  her- 
self of  the  presumption  in  her  favor  against  the  existence  of 
a  separate  benefit  to  her.3 

Under  the  Connecticut  statute  a  wife's  separate  estate  has 
been  held  not  to  be  liable  on  a  joint  note  with  her  husband 
for  his  debts,  although  it  contain  the  words  "each  intending 
hereby  to  charge  our  individual  estate."4  And  her  joint 
note  with  her  husband  without  any  such  expression  is  not 
presumptively  within  the  statute  which  makes  her  liable  on 
all  contracts  for  "the  benefit  of  herself,  her  family,  or  her 
separate  or  joint  estate."5  So,  in  Michigan,  the  wife's  note 
made  jointly  with  her  husband,  without  any  consideration  to 
her  except  on  the  part  of,  and  proceeding  from,  her  husband, 
is  not  binding  on  her  or  her  estate.6 

1  Coats  v.  McKee,  26  Ind.  223  (1866). 

2Bisland  v.  Provosty,  14  La.  An.  165  (1859). 

"Henry  v.  Gauthreaux,  32  La.  An.  1103  (1880). 

♦Smith  v.  Williams,  33  Conn.  409  (1876). 

4  Way  v.  Peck,  47  Conn.  23  (1879) ;  G.  S.  417  \  9. 

•Reed  v.  Buys,  44  Mich.  80  (1880).    See,  too,  Richards  v.  Proper,  lb.  96. 

2d 


450  CAPACITY — MARRIED    WOMEN. 


III.    RIGHTS    OF    HUSBAND. 

314.  Contracts  between  Husband  and  Wife. 

315.  Husband  and  Wife  in  the  United  States. 

316.  Actions  between  Husband  and  Wife — by  Indorsee. 
317    Acquisition  and  Transfer — Before  or  After  Marriage. 

*  318.  Wife  as  Agent  of  Husband. 

\  319.  Husband's  Right  to  Choses  in  Action  of  Wife. 

'  320.  Actions  by  and  against  Married  Woman. 

321.  Payment  to  Husband  or  Wife. 

322.  Transfer  by  Husband  or  Wife. 

323.  Wife's  Property — Liability  for  Husband's  Debts. 

324.  Husband's  Liability  for  Ante-nuptial  Debts. 

325.  Rights  of  Survivorship. 

326.  Reduction  to  Possession. 

§  314.  Contracts  between  Husband  and  Wife. — At  common 
law  the  personal  identity  of  husband  and  wife  rendered  void 
all  contracts  between  them.  And  this  rale  remains  in  many 
States  unchanged  notwithstanding  the  recent  statutes  that 
have  been  referred  to.  According  to  this  rule  a  bill  of  ex- 
change or  note  made  by  husband  to  wife,  or  vice  versa,  is 
void.1  A  husband  cannot  indorse  and  deliver  a  note  to  his 
wife  so  as  to  pass  a  valid  title  to  her  as  against  his  assignee.2 
And  it  has  been  held  that  a  note  by  husband  to  wife  is  so 
absolutely  void  that  it  cannot  even  be  ratified  by  a  subse- 
quent promise  of  payment  made  by  the  husband  to  a  subse- 
quent holder.3  So,  a  note  made  by  a  wife  to  her  husband 
and  the  indorsement  of  it  by  him  are  both  invalid.4  And 
where  a  husband  has  given  a  note  to  his  wife  for  a  debt  due 
her  at  the  time  of  her  marriage,  she  cannot,  it  is  said,  bring 
an  action  upon  it  against  his  executor.5  And  it  has  even 
been  held  that  if  the  wife  has  made  advances  for  the  pay- 
ment of  her  husband's  debts,  and  he  has  given  his  note  for 

'Roby  v.  Phelon,  118  Mass.  541  (1875) ;  Hooker  v.  Boggs,  63  111.  161  (1872) ; 
Sweat  v.  Hall,  8  Vt.  187  (1836);  Garner  v.  Sheriff,  26  La.  An.  375  (1874). 
But  such  a  note  given  for  money  borrowed  at  the  time  may  be  enforced  in 
equity,  Huston  v.  Cone,  24  Ohio  St.  11  (1873). 

2Gay  v.  Kingslev,  11  Allen  345  (1865);  Seyfert  v.  Edison,  16  Vroom  393 
(1883). 

3Sweat  v.  Hall,  8  Vt.  187  (1836).     . 

4Roby  v.  Phelon,  118  Mass.  511  (1875).  So,  too,  a  husband's  note  payable, 
to  bis  wife  and  indorsed  by  her,  Hooker  v.  Boggs,  63  111.  161  (1872). 

"Tackson  v.  Parks,  10  Gush.  550  (1852). 


HUSBAND    AND    WIFE    IN    THE    UNITED    STATES.  451 

that  consideration  to  an  assignee  of  her  claim,  it  will  be  void 
as  against  his  estate.1  So,  if  the  husband  gives  to  his  wife 
for  a  valuable  consideration  a  note  payable  to  her  or  bearer,  ' 
no  action  can  be  brought  on  it  by  the  bearer.2  In  like  man- 
ner, the  husband  will  not  be  liable  on  a  note  given  to  his 
wrife  for  her  money  used  in  building  his  house,3  or  for  prop- 
erty received  from  her  which  had  not  been  held  for  her 
separate  use.4 

But  in  equity  such  a  note  given  for  advances  by  the  wife 
is  equivalent  to  a  declaration  of  trust.5  So,  a  note  given  to 
her  for  her  distributive  share  of  her  father's  estate  which 
had  been  collected  by  her  husband.6  And  it  seems  that 
where  the  husband's  creditors  are  not  prejudiced  by  a  gift 
made  by  him  to  his  wife  of  a  note,  although  such  gift  is 
legally  void,  the  note  will  be  enforced  in  equity  in  the  wife's 
favor  against  the  maker.7 

§  315.  Husband  and  Wife  in  the  United  States. — In  some 
of  the  United  States  the  husband's  estate  is  held  liable  to  the 
wife  on  a  note  made  by  the  husband  to  her  for  money  loaned.8 
And  where  the  wife  makes  a  note  to  her  husband,  it  has 
been  held  sufficient  to  bind  her  separate  estate  in  the 
hands  of  an  indorsee.9  So,  if  a  husband  with  others  gives  a 
note  to  his  wife  for  money  loaned  by  her  as  administratrix, 
it  will  survive  to  her  on  his  death  and  be  valid  against  his 
estate.10  And  a  note  transferred  by  a  husband  to  his  wife,  in 
consideration  of  a  previous  loan  by  her,  has  been  held  to  be 
valid  against  his  creditors.11 

In  Alabama  it  has  been  held  that  an  indebtedness  by  the 

'Phillips  v.  Frye,  14  Allen  361  (1867). 

•Ingham  v.  White,  4  Allen  412  (1862). 

"Turner  v.  Nye,  7  Allen  176  (1863). 

1  Patterson  v.  Patterson,  45  N.  H.  164  (1863). 

»Murray  v.  Glasse,  23  L.  J.  Ch.  (n.  s.)  126. 

•McCampbell  v.  McCampbell,  2  B.  J.  Lea  661  (1879). 

'Tullis  v.  Fridley,  9  Minn.  79  (1864). 

•Logan  v.  Hall,  19  Iowa  491  (1865) ;  Bryant  v.  Bryant,  3  Bush  155  (1867). 

"Morrison  v.  Thistle,  67  Mo.  596  (1878). 

10 Richards  v.  Richards,  2  B.  &  Ad.  447  (1831). 

"Clough  v.  Russell,  55  N.  H.  280  (1875). 


452  CAPACITY MARRIED    WOMEN. 

husband  to  the  wife  for  money  used  by  him  which  belonged 
to  her  separate  estate  may  be  enforced  as  a  debt  against  him 
or  his  estate.1  And  in  Pennsylvania,  since  the  act  of  1848, 
a  note  executed  by  the  husband  when  solvent,  to  his  wife,  for 
her  distributive  share  of  her  father's  estate  received  by  him,  is 
a  valid  claim  in  her  favor  against  his  estate  on  his  subsequent 
insolvency.2  And  in  Mississippi  under  similar  circumstances 
it  was  held  that  such  a  note  was  properly  provable  against  the 
husband's  estate  in  bankruptcy  and  was  discharged  like  any 
other  claim  after  proof  and  dividend.3  So,  it  has  been  held 
in  New  York  that  a  note  by  a  husband  to  his  wife  subse- 
quently paid  by  a  bill  of  sale  of  property  from  him  to  her 
will  be  valid  against  his  creditors.4  So,  in  Louisiana,  a  note 
given  by  the  husband's  firm  to  his  wife  for  a  loan  of  her 
paraphernal  property  will  sustain  a  recovery  against  the  firm 
in  a  suit  by  the  husband  and  wife.5  And  in  Massachusetts, 
since  the  act  of  1874,  a  wife  may  indorse  a  partnership  note 
of  her  husband's  firm  for  accommodation  of  the  firm,  and 
such  indorsement  will  be  valid  between  the  original  parties.6 

§  316.  Action  between  Husband  and  Wife — By  Indorsee. — 
At  common  law  no  action  could  be  brought  by  the  wife 
against  her  husband  during  coverture.  It  seems,  however, 
that  after  divorce  a  vinculo  she  may  sue  her  husband  in 
Maine  for  money  loaned  to  him  and  secured  by  his  note  to 
her  during  coverture.7  And  in  Nebraska  she  may  by  statute 
sue  her  husband  pending  coverture  on  his  note  given  to  her.8 

Notwithstanding  the  recent  changes  in  the  law  relating  to 
this  subject  a  wife's  note  to  her  husband,  where  not  otherwise 
provided  by  statute,  is  presumptively  void ;  and  in  order  to 
render  her  separate  estate  liable  in  New  York  on  such  a  note 

1  Rowland  v.  Plummer,  50  Ala.  182  (1874). 
*Ziegler's  Appeal,  84  Perma.  St.  342  (1877). 
'Thomas  v.  Thomas,  45  Miss.  263  (1861). 
♦Savage  v.  O'Neil,  44  N.  Y.  29S  (1871). 
5 Drake  v.  Hays,  27  La.  An.  256.  (1875). 
6Kenworthy  v.  Sawyer,  125  Mass.  28  (1878). 
1  Webster  v.  Webster,  58  Me.  139  (1870). 
8  May  v.  May,  9  Neb.  16  (1879) ;  G.  S.  528  \  31. 


SUBSEQUENT    MARRIAGE.  453 

her  separate  benefit  and  a-n  intention  to  charge  her  separate 
estate  must  appear.1 

If  the  note  has  been  transferred  by  the  husband's  indorse- 
ment, it  will  be  good  between  him  and  his  indorsee,  without 
regard  to  the  question  of  the  legality  of  the  original  contract 
between  husband  and  wife.2  But  a  note  made  by  the  husband 
to  the  order  of  his  wife  for  money  clue  her  comes  to  her 
indorsee  subject  to  all  equitable  defenses,  notwithstanding  its 
indorsement  after  maturity  by  both  husband  and  wife.3 

§  317.  Subsequent  Marriage — Acquisition  or  Transfer  after 
Marriage. — The  subsequent  marriage  of  the  maker  and  the 
payee  of  a  note  will  not  render  it  void,  and  in  New  York 
the  wife,  being  the  payee,  can  recover  upon  it  at  law.4  In 
Massachusetts,  however,  such  subsequent  marriage  has  been 
held  to  annul  the  note,  and  it  cannot  be  revived  by  the  death 
of  the  husband.5  And  where  the  maker  of  a  note  afterwards 
marries  and  the  note  is  transferred  subsequently  to  her  hus- 
band, it  is  thereby  extinguished  and  cannot  be  revived  by  its 
subsequent  transfer  by  him.6  In  Arkansas  it  has  been  held 
that  where  the  maker  and  payee  of  a  note  subsequently 
marry,  although  by  the  ante-nuptial  contract  notes  belonging 
to  the  wife  do  not  pass  to  the  husband,  her  right  of  action 
against  her  husband  being  lost  by  marriage  destroys  also  her 
right  to  recover  against  the  surety  on  the  note.7 

Where  a  note  made  to  the  wife  and  indorsed  by  her  comes 
afterwards  into  the  possession  of  the  husband  by  an  indorse- 
ment in  blank  he  may  bring  suit  upon  it  as  the  holder.8 
And  it  has  been  held  that  he  may  sue  upon  a  note  to  his  wife 
transferred  to  him  after  marriage  by  direct  delivery  from 
her.9     And  where  a  note  made  by  the  husband  to  a  third 

Second  Nat.  Bank  v.  Muller,  63  N.  Y.  639  (1875). 

'Haly  v.  Lane,  2  Atk.  182;  Robertson  v.  Allen,  3  Baxter  233  (1873). 

"Beard  v.  Dedolph,  29  Wis.  136  (1871). 

4  Wright  v.  Wright,  59  Barb.  505  (1871). 

6Abi)ott  v.  Winchester,  105  Mass.  115  (1870). 

•Chapman  v.  Kellogg,  102  Mass.  246  (1869). 

»Govan  v.  Moore,  30  Ark.  667  (1875). 

"Ahrmis  v.  State  Bank,  3  So.  Car.  401  (1871). 

'White  v.  Callinan,  19  Ind.  43  (1862). 


454  CAPACITY MARRIED    WOMEN. 

person  has  been  transferred  by  indorsement  to  the  wife  and 
by  her  to  the  plaintiff,  the  husband  is  unquestionably  liable 
upon  it  to  the  holder.1  In  New  York  it  is  held  that  a  note 
which  is  the  separate  property  of  the  wife  may  be  transferred 
by  her  to  her  husband  as  if  she  were  sole.2  And  equity  will 
enforce  an  agreement  made  by  the  husband  in  consideration 
of  his  wife's  release  of  dower  to  transfer  to  her  a  note  re- 
ceived from  the  sale  of  land.3  In  Massachusetts  it  has  been 
held  that  a  good  title  to  a  bill  of  exchange  will  pass  by  the 
wife's  indorsement,  notwithstanding  that  she  had  received 
the  bill  by  indorsement  and  delivery  from  her  husband.4 
But  his  delivery  of  a  note  to  her  with  authority  to  collect  it 
will  not  transfer  the  title.5  In  Kentucky  the  transfer  of  a 
note  by  husband  to  wife  as  her  separate  property  will  be 
good  except  as  against  him.6 

It  has  been  held  that  if  one  who  is  indebted  under  a  judg- 
ment, transfers  a  note  without  indorsement  to  his  wife,  and 
she  disposes  of  it  in  exchange  for  other  property,  such  prop- 
erty will  be  chargeable  in  her  hands  with  payment  of  the 
judgment.7  But  where  the  rights  of  creditors  are  not  in 
question,  the  husband's  direction  to  make  a  note  for  money 
due  him  payable  to  his  wife  will  be  a  good  gift  to  her.8  And 
such  a  gift  will  be  supported  in  equity  under  an  agreement 
made  in  consideration  of  her  release  of  dower.9 

§  318.  Agency  of  Husband  and  Wife  for  One  Another. — 
Sometimes  a  bill  or  note  is  signed  by  the  wife  as  her  hus- 
band's agent.  In  such  case  her  authority  must  be  proved 
by  the  person  seeking  to  recover  on  the  paper.10    Without 

'Russ  v.  George,  45  N.  H.  467  (1864). 

'Sheldon  v.  Clancy,  42  How.  Pr.  186  (1870). 

3  Ward  v.  Crotty,  4  Mete.  59  (Ky.  1862). 

*Slawson  v.  Loring,  5  Allen  240  (1862). 

5Carley  v.  Green,  12  Allen  104  (1866). 

•Martin  v.  Curd,  1  Bush  327  (1866). 

7  Brown  v.  Matthaus,  14  Minn.  205  (1869). 

"Reed  v.  Reed,  52  N.  Y.  651  (1873). 

"Maraman  v.  Maraman,  4  Mete.  84  (Ky.  1862). 

10Goldstone  v.  Tovey,  6  Bing.  N.  C.  98 ;  S.  C,  6  Scott  394.  Although  in  pur- 
chases for  domestic  use  a  wife's  agency  for  her  hushand  will  be  presumed, 
Dunn  v.  Raynor,  7  N.  J.  Law  J..  82  (N.  J.  Sup.  Ct.  1884). 


AGENCY  OF  HUSBAND  AND  WIFE  FOR  ONE  ANOTHER.  455 

such  proof  the  husband  will  not  be  liable  on  a  note  signed 
by  his  wife;  and  where  such  signature  has  been  prohibited 
and  the  fact  is  known  by  the  holder,  he  cannot  recover.1 
The  same  thing  is  true  of  the  husband's  liability  on  his  wife's 
indorsement.2  Where,  however,  a  draft,  which  is  the  prop- 
erty of  the  husband,  is  made  to  the  order  of  the  wife  and 
indorsed  by  her  by  his  authority,  he  will  be  liable.3 

And  his  authority  may  be  implied.  Thus,  he  has  been 
held  liable,  in  New  York,  for  the  payment  of  her  note  given 
for  furniture  purchased  by  her  for  a  boarding  house  kept  by 
her,  in  which  her  husband  and  children  lived  ;4  but  not,  in 
general,  on  her  note  given  for  goods  purchased  by  her  with- 
out his  knowledge.5  And  where  the  wife  elopes  from  her 
husband,  he  cannot  be  held  liable  on  her  contract  by  reason 
of  any  implied  agency.6  But  he  may  be  held  liable  on  a 
note  given  by  her  in  the  course  of  business  carried  on  by  her 
with  his  knowledge  as  a  sole  trader.7  In  like  manner,  if 
payment  of  a  draft  is  made  to  the  wife  of  the  payee's  attor- 
ney, who  had  authorized  his  wife  during  his  absence  to 
receive  certain  other  moneys,  such  payment  will  not  be  bind- 
ing without  proof  of  her  authority  in  this  particular  case.8 
So,  in  order  to  make  a  wife's  payment,  on  account  of  her 
husband's  note,  available  as  a  bar  to  the  Statute  of  Limita- 
tions, her  agency  must  be  shown.9  The  agency  of  the  wife 
for  her  husband  is  ordinarily  a  question  of  fact  for  the  jury.10 
This  has  been  held  to  be  so  in  New  York  where  a  wife  gave 

'Rekeart  v.  Sanford,  5  Watts  &  S.  164  (1843). 

2 Leeds  v.  Vail,  15  Penna.  St.  185  (1850). 

3 Hancock  Bank  v.  Joy,  41  Me.  568  (1856). 

4S\vitzer  v.  Valentine,  10  How.  Pr.  109  (1854). 

5  Moses  v.  Fogartie,  2  Hill  335  (So.  Car.  1834). 

"Hatchett  v.  Baddeley,  2  W.  Bl.  1079. 

'Abbott  v.  MeKinley,  2  Miles  220  (1838).  And  his  authority  to  her  to  carry 
on  business  as  a  sole  trader  may  be  inferred  from  his  conduct,  Prince  v.  Bru- 
natte.  1  Bing.  N.  C.  435. 

"Day  v.  Boyd,  6  Heisk.  458  (1871). 

9  Butler  v.  Price,  115  Mass.  578  (1874). 

10 Lord  v.  Hall,  8  C.  B.  627  (1849),  she  having  indorsed  in  his  name  a  note 
payable  to  him. 


456  CAPACITY MARftlED    WOMEN. 

a  note  in  her  own  name  for  horses  bought  by  her  for  a  farm 
which  she  carried  on.1 

A  general  power  of  attorney  to  a  husband  to  make  notes 
and  transact  other  business  for  his  wife  will  not  include  au- 
thority to  make  accommodation  paper.2  Nor  will  a  general 
power  of  attorney  in  Louisiana  authorize  a  husband  to  in- 
dorse a  bill  of  exchange  in  his  wife's  name.3  And  it  has 
been  held  that  an  authority  given  by  the  husband  to  his  wife 
to  give  a  note  will  not  cover  a  note  given  by  her  in  her  own 
name  without  reference  to  such  authority.4  Nor  will  a  power 
given  by  a  man  to  his  wife  "for  me  and  in  my  behalf  to 
accept  such  bill  of  exchange  as  shall  be  drawn  on  me  by  my 
agents  "  include  bills  of  exchange  drawn  by  the  husband's 
firm.5  Where  a  bill  of  exchange  drawn  on  a  husband  has 
been  accepted  by  his  wife  in  her  own  name,  he  may  make 
the  acceptance  his  by  ratification,  and  he  may  do  this  by  a 
subsequent  acknowledgment  of  it  and  promise  to  pay  it.6  So, 
if  the  wife  gives  a  note  in  her  husband's  name  in  considera- 
tion of  the  surrender  of  a  previous  note  or  bill,  he  will  be 
bound  by  a  subsequent  ratification  of  the  act.7 

§  319.  Husband's  Right  to  Chose  in  Action  of  Wife. — Bills 
of  exchange  and  promissory  note  and  other  negotiable  in- 
struments are  choses  in  action  and  subject  to  the  rule  of  law 
governing  such  property.8  Thus,  at  common  law,  a  bill  or 
note  made  to  the  wife  becomes  the  property  of  her  husband  ;9 
even  though  given  to  her  for  her  distributive  share  of  a 
deceased  relative's  estate.10    And  even  a  note  made  to  a  wife 

'Gates  v.  Brower,  9  N.  Y.  205  (1853). 

'Nash  v.  Mitchell,  8  Hun  471  (1877). 

"Laplante  v.  Briant,  13  La,  An.  566  (1858). 

4Minard  v.  Mead,  7  Wend.  68  (1831). 

BAttwood  v.  Munnings,  1  M.  &  Ry.  66  (1827). 

"Lindus  v.  Bradwell,  5  C.  B.  583  (1848).  See,  too,  Cotes  v.  Davis,  1  Campb. 
485. 

'Shaw  v.  Emery,  38  Me.  484  (1854). 

"Caters  v.  Madely,  6  M.  &  W.  423. 

-Connor  v.  Martin,  1  Stra.  516;  Greenleaf  v.  Hill,  31  Me.  562  (1850); 
Thrasher  v.  Tuttle,  22  lb.  335  (1843) ;  Dunn  v.  Hornbeck,  7  Hun  629  (1876) ; 
Tuttle  v.  Fowler,  22  Conn.  58  (1852). 

10Common\vealtli  v.  Manley,  12  Pick.  173  (1831). 


ACTION    BY    OR    AGAINST    A    MARRIED    WOMAN.  457 

as  sole  trader  belonged  at  common  law  to  the  husband, 
although  he  was  living  apart  from  her  and  in  adultery,  and 
he  might  recover  it  after  her  death  from  her  representatives.1 
But  where  a  note  is  made  to  a  married  woman  as  payee  and 
retained  by  her,  it  belongs  to  her  like  other  choses  in  action 
until  reduced  to  possession  by  her  husband.2  Even  if  made 
to  her  before  her  marriage  it  will  pass  to  her  husband,3  if 
reduced  by  him  to  possession.  And  although  it  be  not  re- 
duced to  possession  by  him,  it  will  still  survive  to  him  on 
her  death.4  Her  liability,  however,  on  a  note  made  by  her 
before  marriage  and  barred  by  the  statute  of  limitation  will 
not  be  revived  by  an  acknowledgment  of  the  debt  by  her 
husband.5 

§  320.  Action  by  or  Against  a  Married  Woman. — A  mar- 
ried woman's  power  to  sue  alone  did  not  exist  at  common 
law,  although  she  might  be  enabled  to  hold  property  in  her 
own  name.  If,  however,  she  holds  a  note  in  her  own  name, 
and  as  her  sole  property,  she  may  in  some  States  now  bring 
suit  upon  it  without  joining  her  husband.6  In  other  States, 
as  at  common  law,  the  title  being  in  her  husband,  she  cannot 
bring  a  suit  on  the  paper  in  her  own  name.7  Nor  can  she 
sue  alone  although  her  husband  has  been  absent  and  not 
heard  from  for  the  period  of  more  than  seven  years.8 

Where  a  note  or  bill  is  made  payable  to  the  wife,  both 
may  join  at  common  law  in  a«n  action  upon  it;9  or  the  hus- 
band may  sue  alone.10    So,  the  husband  may  sue  upon  a  note 

'Russell  v.  Brooks,  7  Pick.  65  (1S28). 

2  Hoop  v.  Plummer,  14  Ohio  St.  448  (1S63). 

8Ra\vlinson  v.  Stone,  3  Wilson  1 ;  Evans  v.  Secrest,  3  Ind.  545  (1852) ;  Hol- 
land v.  Moody,  12  lb.  170  (1859),  the  marriage  having  in  both  of  these  cases 
taken  place  before  the  passage  of  the  Act  of  1853;  Tryon  v.  Sutton,  13  Cal. 
490(1859). 

*  Jones  v.  Warren,  4  Dana  333  (1836). 

6 Moore  v.  Leseur,  18  Ala.  606  (1851). 

6Hadley  v.  Brown,  2  Kans.  416  (1864). 

'Kinibro  v.  First  Nat,  Bank,  1  MacArth.  61  (1873). 

8 Lake  v.  Ruffle,  6  Nev.  &  M.  6S4. 

9Bvles  67;  1  Daniel  248;  Philliskirk  v.  Pluckwill,  2  M.  &  S.  393;  Arnould 
v.  Revoult,  1  Brod.  &  Bing.  443;  S.  <'..  4  Moore  70. 

10By]es  67;  1  Daniel  248;  Burrough  v.  Muss,  10  B.  &  C.  558  (1830) ;  S.  C,  5 
M.  ct  By.  296;  Sutton  v.  Warren,  10  Mete,  451  (1845). 


458  CAPACITY MARRIED    WOMEN. 

in  his  own  name,  although  it  was  made  to  his  wife  in  her 
maiden  name  and  the  marriage  was  unknown  to  the  maker.1 
And  where  an  action  is  brought  by  the  husband  on  a  note 
made  to  the  wife,  a  debt  of  hers  cannot  be  set  off  against 
the  note.2  It  has  even  been  held  that  the  husband  may  pro- 
ceed in  equity  without  joining  his  wife  for  an  injunction 
against  a  third  person  to  prevent  his  collecting  or  disposing 
of  a  note  belonging  to  the  wife.3  And  even  where  the  wife 
as  an  administratrix  takes  a  bond  payable  to  herself  and 
husband,  it  has  been  held  that  the  husband  may  sue  upon  it 
alone.4  And  this  is  true  generally  as  to  notes  or  bills  which 
are  the  common  property  of  husband  and  wife.5  In  Louisi- 
ana where  a  note  is  made  to  the  wife,  and  suit  is  brought  on 
it  by  husband  and  wife  together,  there  being  no  property  in 
the  husband,  his  authority  to  the  wife  to  have  and  collect 
the  note  will  be  presumed.6  At  common  law  the  husband 
and  wife  may  bring  an  action  jointly  on  a  note  made  to  the 
wife  before  marriage  ;7  or  the  husband  may  sue  upon  it  alone.8 
But  it  was  held  in  New  York  before  the  recent  statute,  that 
the  husband  must  join  the  wife  in  such  an  action  and  could 
not  sue  upon  it  alone.9 

§  321.  Payment  to  Husband  or  Wife. — Where  notes*or  bills 
made  to  the  wife  are  regarded  in  law  as  the  property  of  the 
husband,  it  is  evident  that  payment  should  be  made  to  him. 
And  in  such  case  payment  to  her  will  not  constitute  a  suffi- 
cient defense.10  On  the  other  hand,  payment  to  him  will  be 
a  complete  defense  to  an  action  brought  by  her,  even  since 
the  recent  statutes,  where  the  note  paid  was  not  the  separate 
property  of  the  wife  but  was  made  payable  to  her  by  her 

'Templeton  v.  Cram,  5  Me.  417  (1828). 
'Burrough  v.  Moss,  10  B.  &  C.  558  (1830). 
3 Clay  v.  Power,  24  Tex.  304  (1859). 
*Ankerstein  v.  Clarke,  4  T.  R.  616. 
5  Crow  v.  Van  Sickle,  6  Nev.  146  (1870). 
*Raiford  v.  Wood,  14  La.  An.  116  (1859). 
7Philliskirk  v.  Pluckwell,  2  M.  &  S.  393. 
"McNeilage  v.  Halloway,  1  B.  &  Aid.  221. 
9 Morse  v.  Earle,  13  Wend.  271  (1835). 
"Thrasher  v.  Tuttle,  22  Me.  335  (1843). 


TRANSFER    BY    HUSBAND    OR    WIFE.  459' 

husband's  consent,  having  been  given  for  the  purchase-money 
of  land,  standing  in  the  wife's  name  because  the  husband 
was  an  alien,  and  sold  by  her.1  So,  if  property  belonging  to 
a  man  and  his  wife  jointly  was  sold  by  them,  and  the  note 
given  in  payment  was  made  payable  to  the  husband  and 
paid  to  him,  such  payment  would  bar  a  recovery  by  her 
heirs.* 

So,  where  a  note  was  made  payable  to  the  wife  at  the 
husband's  request  as  a  gift  from  him,  his  release  of  the  maker 
would  be  a  complete  defense  against  her  claim.3  And  by  the 
civil  law  where  the  husband  sells  a  piece  of  land  of  which 
he  owns  half  in  his  right  of  community  property,  and  in  the 
other  half  of  which  he  has  a  usufruct,  and  takes  notes  in 
payment,  he  may  compromise  and  settle  such  notes.4  At 
common  law,  although  a  wife  might  sue  and  be  sued  as  an  un- 
married woman  after  divorce  a  mensa  et  thoro,  a  note  made  to 
her  might  be  reduced  to  possession  by  her  husband  after  such 
divorce ;  and  in  such  case  payment  to  him  would  defeat  an 
action  by  her.6  But  a  payment  made  to  the  husband  after 
a  divorce  a  vinculo  on  a  note  to  the  wife,  not  reduced  by  him 
to  possession  before  such  divorce,  may  be  recovered  by  her.6 
Where,  however,  by  force  of  recent  statute  or  otherwise,  the 
law  recognizes  the  sole  property  of  the  wife  in  a  note  or  bill 
made  payable  to  her,  payment  of  it  to  her  husband  without 
her  consent  will  be  no  defense  to  an  action  by  her.7 

§  322.  Transfer  by  Husband  or  Wife — Insolvent  Assign- 
ments.— Under  the  rule  of  law  which  transfers  to  the  hus- 
band on  marriage  a  note  or  bill  payable  to  the  wife,  he  only 
can  make  a  sufficient  transfer  of  it.8     And  it  seems  that  he 

•Dunn  v.  Hornbeck,  7  Hun  629  (1876). 
'Long  v.  Walker,  47  Tex.  173  (1877). 
sTowle  v.  Towle,  114  Mass.  167  (1873). 
♦Vinson  v.  Vives,  24  La.  An.  336  (1872). 
5  Dean  v.  Richmond,  5  Pick.  461  (1827). 
6Legg  v.  Legg,  8  Mass  99  (1811). 
'Carver  v.  Carver,  53  Ind.  241  (1876). 

8Rawlinson  v.  Stone,  3  Wilson  1 ;  Mason  v.  Morgan,  2  Ad.  &  El.  30 ;  Evans 
v.  Secrest,  3  Ind.  545  (1852) ;  Holland  v.  Moody,  12  lb.  170  (1859),  where  the 


460  CAPACITY MARRIED    WOMEN. 

might  transfer  such  a  note  notwithstanding  a  divorce.1  So, 
the  husband  might  assign  and  dispose  of  a  legacy  made  to 
his  wife  for  the  payment  of  his  debts.2  And,  in  general,  all 
choses  in  action  may  be  assigned  by  the  husband,  if  he  has 
the  right  to  reduce  them  to  possession.3  He  may  transfer 
his  wife's  bank  share  by  delivery.4  He  may  assign  her 
choses  in  action  in  trust.5 

But  an  assignment  in  bankruptcy  by  the  husband  will  not 
carry  a  note  made  to  the  wife  before  her  marriage.6  Al- 
though, in  Massachusetts,  the  contrary  has  been  held  of  a 
note  made  payable  to  the  wife  after  her  marriage.7  It  has 
also  been  held  in  the  United  States  that  the  husband's  assign- 
ment as  an  insolvent  carries  his  wife's  choses  in  action.8 
Although  in  a  later  case  in  Pennsylvania  the  rule  was 
limited  to  assignments  which  expressly  include  such  prop- 
erty.9 And  notwithstanding  an  assignment  by  the  husband 
as  an  insolvent,  her  right  of  survivorship  to  choses  in  action 
not  reduced  to  possession  by  the  husband  remains  unim- 
paired.10 So,  an  assignment  by  the  husband  of  his  wife's 
choses  in  action  as  collateral  will  not  defeat  her  right  of  sur- 
vivorship.11    It  has,  however,  been   held  in   Pennsylvania 

marriage  was  before  1853;  Tryon  v.  Sutton,  13  Cal.  490  (1859) ;  Bayerque  v. 
Haley,  McAU.  97  (1858).  In  Alabama  tbe  code  provides  for  assignment  in 
writing  of  such  note  by  husband  and  wife  in  the  presence  of  two  witnesses 
without  personal  liability  on  her  part,  Walker  v.  Struve,  60  Ala.  167  (1881) ; 
Code  g  2707. 

buttle  v.  Fowler,  22  Conn.  58  (1852). 

8 Barnes  v.  Pearson,  6  Ired.  Eq.  482  (1849). 

3Mattheney  v.  Guess,  2  Hill  Ch.  63  (1834) ;  Outcalt  v.  Van  Winkle,  1  Green 
Ch.  513  (1838). 

*  Forest  v.  Warrington,  2  Dess.  254  (1804). 

5Siter's  Case,  4  Rawle  468  (1834). 

Sherrington  v.  Yates,  12  M.  &  W.  855,  reversing  Yates  v.  Sherrington,  11 
lb.  42. 

'Smith  v.  Chandler,  3  Gray  392  (1855),  holding  a  subsequent  transfer  by 
husband  and  wife  to  be  invalid. 

8Shuman  v.  Reigart,  7  W.  &  S.  168  (1844);  Davis  v.  Newton,  6  Mete.  537 
(1813). 

•Eshelman  v.  Shuman,  13  Penna.  St.  561  (1S50). 

10  Van  Epps  v.  Van  Deusen,  4  Paige  64  (1833) ;  Slaymaker  v.  Bank  of  Get- 
tysburgh,  10  Penna.  St.  373  (1849). 

"Hartman  v.  Dowdel,  1  Rawle  279  (1829).  But  this  is  questioned  in  Siter's 
Case,  4  lb.  472. 


TRANSFER    BY    HUSBAND    OR    WIFE.  461 

that  an  assignment  by  the  husband  will  defeat  the  survivor- 
ship of  the  wife.1 

It  follows,  from  what  has  been  said,  that  during  coverture 
the  wife  cannot  at  common  law  transfer  or  indorse  effectually 
a  note  made  to  her,  inasmuch  as  the  property  in  the  note  is 
vested  in  the  husband.2  And  even  if  made  to  her  as  a  sole 
trader  and  indorsed  by  her  for  her  own  debt,  it  will  not  be  a 
valid  transfer.3  The  indorsement  must  be  by  the  husband, 
and  his  indorsement  in  her  name  will  be  insufficient.*  But 
if  the  wife  has  purchased  a  note  made  by  her  husband  before 
their  marriage,  and  indorses  it  with  his  consent,  the  note 
never  having  been  reduced  by  him  to  possession,  an  action 
will  lie  in  favor  of  her  indorsee.5 

It  seems  that  an  attachment  against  the  husband  cannot 
reach  a  note  made  to  the  wife  for  a  sale  of  the  husband's 
property  and  transferred  by  her  before  the  attachment,  espe- 
cially where  the  transfer  was  to  a  creditor  in  consideration 
of  necessaries  furnished.6  Nor  can  the  husband's  creditors, 
after  his  death,  reach  a  note  made  to  the  wife  in  considera- 
tion of  her  release  of  dower  and  transferred  by  her  indorse- 
ment in  her  husband's  life-time  with  his  consent.7  Where 
a  note  is  made  payable  to  a  married  woman  or  bearer,  it  may 
be  transferred  by  the  joint  assignment  of  husband  and  wife.8 
On  the  other  hand,  it  has  been  held  in  Texas  that  a  trans- 
fer by  the  husband  without  indorsement  and  as  collateral  of 
a  note,  made  payable  to  the  wife's  order  and  given  in  pay- 
ment for  land  which  belonged  to  her,  will  convey  no  title 
without  her  authority  to  persons  having  notice  of  her  rights.9 

1  Rich  wine  v.  Heim,  1  Penr.  &  W.  373  (Pa.  1830). 

2 Connor  v.  Martin,  1  Stra.  516. 

3 Barlow  v.  Bishop,  1  East  432  (1801).    It  would  be  otherwise,  it  seems,  if 
indorsed  by  her  in  his  name,  lb. 

♦Savage  v.  King,  17  Me.  301  (1840). 
5Russ  v.  George,  45  N.  H.  467  (1864). 
6  Way  v.  Pierce,  51  Vt.  326  (1878). 
TNims  v.  Bigelow,  45  N.  H.  343  (1864). 
8 Cobb  v.  Duke,  36  Miss.  60  (1858). 

•Hamilton  v.  Brooks,  51  Tex.  142  (1879);   Rose  v.  Houston,  11  lb.  326; 
Hemming  way  v.  Mathews,  10  lb.  207. 


462  CAPACITY MARRIED    WOMEN. 

If,  however,  the  wife's  note  has  been  transferred  by  her  hus- 
band to  his  creditors,  she  can  only  defeat  a  recovery  on  it  by 
them  by  evidence  that  it  was  her  property  and  that  the  pur- 
chasers knew  that  fact.1 

§  323.  Wife's  Property — When  Liable  for  Husband's  Debts. — 
Courts  of  equity  have  long  protected  the  wife's  separate 
property,  as  we  have  seen,  against  the  husband's  creditors. 
And  similar  protection  is  now  afforded  at  law  by  many  recent 
statutes.  Apart  from  these,  it  has  been  held  that  a  note  pay- 
able to  the  wife  is  liable  for  her  husband's  debts  and  subject 
to  an  attachment  issued  against  his  property;2  especially 
where  the  note  has  been  made  to  her  without  his  consent.3 
So,  a  wife's  interest  in  her  deceased  father's  estate  has  been 
held  to  be  subject  to  an  attachment  against  her  husband.* 
And  where  a  husband  and  wife  have  brought  a  joint  action 
upon  a  chose  in  action  of  the  wife,  a  debt  of  the  husband 
may  be  set  off  against  it.5  In  Pennsylvania,  however,  it  has 
been  held  that  the  wife's  choses  in  action  are  not  subject  to  an 
attachment  against  the  husband.6  And  they  will  survive  to 
her  on  the  husband's  death  pending  an  attachment  against 
him,  notwithstanding  such  attachment.7  So,  it  has  been 
held  that  a  note,  made  to  the  wife  for  her  separate  estate  and 
never  reduced  to  possession  by  him,  cannot  be  reached  by  an 
attachment  against  him.8  And  the  court  will  not  compel  the 
husband  to  reduce  such  choses  in  action  in  order  to  subject 
them  to  an  attachment  brought  against  him.9 

If  a  note  is  made  payable  to  the  wife,  it  is  presumed 
under  the  Alabama  Code  to  be  for  her  separate  estate,  and 
will  not  be  subject  to  such  an  attachment.10    And  in  Massa- 

JMoye  v.  Waters,  51  Ga.  13  (1874). 

2Shuttlesworth  v.  Noyes,  8  Mass.  229  (1811). 

sSwann  v.  Gauge,  1  Hayw.  3  (1791). 

♦Vance  v.  McLaughlin,  8  Gratt.  289  (1851). 

6  Wish  art  v.  Downey,  15  Serg.  &.  R.  77  (1826). 

•Stoner  v.  Commonwealth,  16  Penna.  St.  387  (1851). 

7 Strong  v.  Smith,  1  Mete.  476  (1840). 

3Poor  v.  Hazelton,  15  N.  H.  564  (1844). 

9Sayre  v.  FlournOy,  3  Ga.  541  (1S47). 

10 Saunders  v.  Garret,  33  Ala.  454  (1859) ;  Ala.  Code  U  1982,  1985. 


husband's  liability.  463 

chusetts  it  has  been  held  that  a  note,  given  to  a  wife  for 
partnership  property  of  the  husband  sold  by  him,  for  which 
she  had  found  the  capital,  is  her  separate  property,  and  in 
the  absence  of  fraud  cannot  be  attached  for  his  debts.1  And 
where  a  note  has  been  made  to  a  married  woman  for  the  rent 
of  land  assigned  to  her  for  her  dower,  and  suit  is  brought  on 
it  by  the  husband  and  wife  jointly,  a  debt  of  the  husband 
cannot  be  used  in  defense  as  a  set-off.2  And  in  Iowa  a  debt 
of  the  husband  cannot  be  pleaded  in  set-off  against  a  note 
subsequently  assigned  to  the  wife.3  So,  in  Indiana,  a  note 
made  payable  to  the  wife  since  1853  is  her  separate  property, 
and  a  debt  of  the  husband  constitutes  no  set-off  against  it.4 
But  a  note  made  to  the  wife  or  for  her  use  is  subject  to  the 
set-off  of  her  own  ante-nuptial  debts,  as  has  been  held  in  a 
recent  action  brought  on  such  a  note  by  the  payee  for  the 
use  of  the  wife.5 

§  324.  Husband's  Liability  for  Wife's  Ante-nuptial  Debts. — 
The  ante-nuptial  debts  of  the  wife  become  at  common  law 
the  liability  of  the  husband,  but  he  cannot  be  sued  for  such 
a  debt  without  the  wife  being  joined  as  defendaut,6  This 
liability  is  done  away  by  statute  in  some  States.  Thus,  in 
Texas,  husband  and  wife  may  be  sued  together  and  judgment 
rendered  against  both  for  such  debt,  but  execution  for  it  can 
only  be  issued  against  the  wife's  property.7  At  common  law 
the  husband's  liability  for  such  debts  ends  with  the  wife's 
life-time;0  although,  so  far  as  she  has  brought  property  to 
her  husband,  a  recovery  may  still  be  had  against  him  after 
her  death  for  her  ante-nuptial  debt.9  The  husband's  liability 
for  such  debts  also  ends  in  general  with  his  life  and  does  not 

'Worthy  v.  Clapp,  99  Mass.  561  (1868). 
'Green  v.  Carson,  4  Mete.  76  (Ky.  1862). 
3Stannns  v.  Stannns,  30  Iowa  448  (1870). 
4McCarty  v.  Mewhinney,  8  Ind.  514  (1856). 
'Gary  v.  Johnson,  72  N.  C.  68  (1878). 

•Byles  68;  1  Daniel  251 ;  Mitchinson  v.  Hewson,  7  T.  R.  348. 
'Roundtree  v.  Thomas,  32  Tex.  286  (1869). 

8  Byles  68;  1  Daniel  251 ;  Mitchinson  v.  Hewson,  7  T.  R.  348;  Morrow  v. 
Whitesides,  10  B.  Mon.  411  (1850). 
•Heard  v.  Stamford,  3  P.  Wm.  409. 


464  CAPACITY MARRIED   WOMEN. 

extend  to  his  estate.1     And  after  his  death  the  original  lia- 
bility of  the  wife  survives  against  her.2 

§  325.  Survivorship  Rights. — On  the  husband's  death,  as 
has  been  said,  the  wife's  choses  in  action,  which  had  not  been 
reduced  by  him  to  possession,  survive  to  her  and  are  her 
property.3  And  her  choses  in  action  pass  upon  her  death 
to  her  personal  representatives,  and  may  be  sued  for  by 
them.4  After  his  death  a  note  or  due-bill  surviving:  to  her 
is  not  subject  to  any  defense  which  existed  against  him  in  his 
life-time.5  Even  an  assignment  by  the  husband  of  the  wife's 
choses  in  action,  without  any  reduction  to  possession  by  him 
or  by  his  assignee,  will  not  defeat  the  wife's  survivorship,  as 
we  have  already  observed.6  So,  where  a  wife  has  retained 
in  her  possession  until  her  husband's  death  a  note  which 
was  made  payable  to  her,  his  executor  cannot  claim  it.T 
And  where  a  note  is  made  to  the  wife,  the  husband's  assent 
is  to  be  presumed  and  it  will  survive  to  her.8  So,  too,  where 
a  note  is  made  to  the  wife  by  her  husband's  direction  and 
intended  for  a  gift  to  her,  even  though  it  may  remain  in  his 
possession  until  his  death.9  In  like  manner,  under  the  rule 
of  law  governing  joint  property,  a  note  or  bill  made  to  the 
husband  and  wife  will  survive  to  the  wife  after  her  husband's 
death.10 

^ureton  v.  Moore,  2  Jones  Eq.  204  (1855). 

•Woodman  v.  Chapman,  1  Campb.  189  (1808). 

"Byles  67;  Richards  v.  Richards,  2  B.  &  Ad.  447;  Betts  v.  Kimpton,  2  B. 
&  Ad.  273;  Gaters  v.  Madelev,  6  M.  &  W.  423  (1840) ;  Scarpellini  v.  Atche- 
son,  7  Q.  B.  804 ;  Hart  v.  Stephens,  6  lb.  937 ;  Hay  ward  v.  Hay  ward,  20  Pick. 
517  (1838)  ;  Story  v.  Baird,  2  Green  262  (N.  J.  1834) ;  Dare  v.  Allen,  1  Green 
Ch.  415  (1841).  "This  is  true  of  a  legacv  to  the  wife,  Snowhill  v.  Snowhill, 
lb.  30  (1838) ;  Revel  v.  Revel,  2  Dev.  &  B.  272  (1837). 

♦Allen  v  Wilkins,  3  Allen  321  (1862) ;  Stearns  v.  Stearns,  30  Vt.  213  (1858). 
And  a  statement  that  it  "became  and  was  the  sole  property"  of  the  hus- 
band is  not  a  sufficient  averment  that  it  was  reduced  by  him  to  possession, 
16.  See,  too,  Driggs  v.  Abbott,  27  Vt.  580  (1855)  ;  Wilson  v.  Bates,  28/6.  785 
(1856).  But  the  proceeds  in  such  action  belong  to  the  husband  by  right  of 
survivorship,  Story  on  Prom.  Notes  \  88;  1  Daniel  249. 

5May  v.  Boisseau,  12  Leigh  512  (1842). 

•Outcalt  v.  Van  Winkle,  1  Green  Ch.  513  (1838). 

7 Phelps  v.  Phelps,  20  Pick.  556  (1838). 

8  Nash  v.  Nash,  2  Mod.  133;  Borst  v.  Spelman,  4  N.  Y.  284  (1850). 

'Scott  v.  Simes,  10  Bosw.  314  (1863). 

10Philliskirk  v.  Pluckwell,  2  M.  &  S.  393;  Sanford  v.  Sanford,  5  Lans.  486; 


REDUCTION    TO    POSSESSION.  465 

Where  a  note  to  the  wife  is  never  reduced  by  the  husband 
to  possession,  and  botli  die,  the  wife  dying  first,  his  executor 
cannot  bring  suit  upon  it  as  on  a  note  made  to  him.1  The 
general  rule,  however,  is  that  a  wife's  chose  in  action  on  her 
death  survives  to  her  husband  without  any  reduction  to  pos- 
session by  him.2  And  this  rule  applies  to  a  note  bequeathed 
to  the  wife  and  left  at  her  death  but  never  reduced  to  posses- 
sion by  the  husband.3 

§  326.  Reduction  to  Possession — What. — It  is  hardly  the 
province  of  this  work  to  consider  in  detail  the  subject  of 
what  constitutes  a  sufficient  reduction  to  possession  by  the 
husband.  His  indorsement  amounts  to  such  reduction  ;4  but 
not  the  mere  act  on  his  part  of  receiving  interest.5  Nor  is 
a  legacy  to  the  wife  reduced  to  possession  by  appropriating  a 
mortgage  for  its  payment  and  by  receipt  of  interest  on  it  by 
the  husband.6  Nor  a  bond  payable  to  the  wife,  by  a  joint 
receipt  by  husband  and  wife.7  Nor  is  a  note  made  to  a  wife 
before  marriage  reduced  to  possession  by  the  husband's 
pledging  it  as  security  and  receiving  it  again  on  discharge 
of  the  debt.8  But  where  an  award  was  made  in  the 
husband's  favor  of  a  legacy  to  the  wife,  it  was  held  to  be  a 
good   reduction   to   possession,  defeating  her  survivorship.9 

S.  C,  61  Barb.  293;  Wilder  v.  Aldrich,  2  R.  I.  518  (1853)  ;  Sandford  v.  Sand- 
ford,  45  N.  Y.  723  (1871);  Johnson  v.  Lu>k,  6  Coldw.  113  (1868);  Allen  v. 
Tate,  58  Mi3s.  585  (1881)  :  Richardson  v.  Daggett,  4  Vt.  336  (1832)  ;  Draper 
v.  Jackson,  16  Mass.  480  (1820).  But  a  note  made  to  them  jointly  for  a  debt 
due  to  him,  while  it  raises  a  presumption  of  an  intended  gift  to  her,  remains 
bis  property  and  under  bis  control  during  his  life,  Pile  v.  Pile,  6  B.  J.  Lea 
508  (1880). 

'Howard  v.  Okes,  3  Exch.  136  (1848). 

:Lee  v.  Wkeeler,  4  Ga,  541  (1848);  Whitaker  v.  Wbitaker,  6  Johns.  112 
(1810).  So,  a  stock  subscription  made  by  the  husband  in  the  wife's  name, 
Btanwood  v.  Stan  wood,  17  Mass.  57  (1820). 

3Albee  v.  Carpenter,  12  Cush.  382  (1853). 

4Byles  68;  Story  on  Prom.  Notes  §  88;  1  Daniel  250. 

5Hart  v  Stephens.  6  Q.  B.  937.  And  see  McNeilage  v.  Halloway,  2  B.  & 
Aid.  218,  criticised  by  Patterson,  J.,  in  this  case,  p.  943. 

•Blount  r.  Bestland,  5  Ves.  Jr.  515  (1800). 

'Timbers  v.  Katz,  6  W.  &  S.  290  (1S43). 

8Latourette  v.  Williams,  1  Barb.  9  (1847).  And  in  such  case  the  husband 
and  wife  may  sue  jointly,  lb. 

"Oglander  v.  Baston,  1  Vern.  396  (1686). 

2e 


466  CAPACITY MARRIED    WOMEN. 

Where  there  is  no  reduction  the  wife's  choses  iu  action  go  by- 
statute  in  Vermont  to  her  next  of  kin  and  not  to  her  hus- 
band.1 

Reduction  to  possession  is,  in  general,  a  matter  of  inten- 
tion and  belongs  as  a  question  of  fact  to  the  jury.2  And  the 
absence  of  such  intention  may  be  proved  by  the  admissions 
of  the  husband.3  So,  the  fact  that  a  husband  has  sold  after 
his  wife's  death,  at  a  price  that  was  suspiciously  low,  a  prom- 
issory note  which  was  her  separate  property,  has  been  held 
to  support  a  finding  by  the  jury  on  the  question  of  reduction 
in  favor  of  her  representatives.4  In  New  Jersey  the  hus- 
band's right  to  reduce  to  possession  his  wife's  choses  in  action 
was  taken  away  by  the  act  of  1852.6 

'Wilson  v.  Bates,  28  Vt.  765  (1856). 

4  Hind's  Estate,  5  Whart.  138  (1839). 
"Gray's  Estate,  1  Penna.  St.  327  (1845). 
♦Gill  v.  Cook,  42  Vt.  140  (1869). 

5  Henry  v.  Dillay,  1  Dutch.  302  (1855) ;  Vreeland  v.  Schoonmaker,  ICE. 
Green  512  (1863). 


GENERAL    CORPORATE    POWERS.  467 


CHAPTER  X. 

CAPACITY— CORPORATIONS  AND  GOVERN- 
MENTS. 

I.   Corporations. 
II.  Municipal  Corporations. 
III.   Governments. 

I.   CORPORATIONS. 

327.  General  Corporate  Powers. 

328.  Commercial  Paper — Power  to  Execute. 

330.  Power  to  Receive  and  Transfer. 

332.  Banking  Laws. 

333.  Loans  by  Corporations. 

334.  Accommodation  Paper. 

335.  Presumption  of  Validity. 

§  327.  General  Corporate  Powers. — Up  to  this  point  only- 
natural  persons  have  been  spoken  of,  but  the  law  recognizes 
also  artificial  persons,  such  as  corporations,  created  by  itself 
and  possessing  in  general  the  same  powers  as  to  contracts 
that  natural  persons  possess.  It  is,  however,  a  general  rule 
of  law  that  corporations  possess  only  those  powers  which  are 
expressly  conferred  by  their  charter  or  which  belong  inci- 
dentally and  by  necessary  implication  to  their  very  existence 
as  corporations.1  It  was  once  held  to  be  the  rule  of  the  com- 
mon law  that  a  corporation  could  only  contract  under  its 
corporate  seal  and  could  not  therefore  make  a  promissory 
note  or  bill  of  exchauge.2 

•Dartmouth  College  v.  Woodward,  4  Wheat.  518  (1819). 

2Byles  70;  Chitty  20;  1  Parsons  163;  Story  on  Bills  \  79;  Story  on  Prom. 
Notes  \  74;  Slark  v.  Highgate  Archway  Co.,  5  Taunt.  794;  Broughton  v. 
Manchester  Water  Works  Co.,  3  B.  &  Aid.  S;  Yarborough  v.  Bank  of  Eng- 
land, 16  East  11 ;  Angell  &  Ames  on  Corp.  g  236;  Lamprell  v.  Guardians  of 
the  Poor,  3  Exch.  306;  Diggle  v.  London  <fe  B.  Ry.  Co.,  5  76.  442;  Church  v. 
Imperial  Gas  Co.,  6  Ad.  &  El.  846  ;  Mayor,  &c,  of  Ludlow  v.  Charlton,  6  M. 
&  VV.  815;  East  London  Water  Co.  v.  Bailey,  4  Bins;.  283:  Arnold  v.  Mayor 
of  Poole,  4  M.  &  G.  861 ;  Copper  Mines  Co.  v.  Fox,  16  Q.  B.  229.  An  excep- 
tion has  been  made  in  favor  of  contracts  of  slight  importance,  East  London 
Water  Co.  v.  Bailey,  supra;  Australia  S.  N.  Co.  v.  Marzetti,  11  Exch.  234; 
Church  v.  Imperial  Gas  Co.,  supra;  Beverley  v.  Lincoln  Gas  Light  Co., 6  Ad. 
&  El.  829;  London  Gas  Light  Co.  v.  Nicholls,  2  C.  &  P.  365;  and  in  favor  of 


468  CAPACITY CORPORATIONS. 

The  recent  requirements  of  business  have,  however,  greatly 
multiplied  coupon  and  other  corporate  bonds  of  a  negotiable 
form,  which  are  often  made  payable  to  bearer,  and  it  is  now 
well  established  that  where  a  bond  is  expressly  negotiable  in 
form  or  is  clearly  intended  to  be  so,  it  is  equivalent  substan- 
tially to  a  promissory  note.1  It  has  also  been  held  that  a  cor- 
poration may  make  a  negotiable  bill  or  note  under  its  cor- 
porate seal.2  But  it  has  been  held  in  England  in  recent  cases 
that  a  corporate  bond  in  negotiable  form,  which  had  come  into 
the  plaintiff's  hands  for  value  after  having  been  stolen  from 

executed  contracts,  Mayor,  &c,  of  Stafford  v.  Till,  4  Bing.  75;  East  London 
Water  Co.  v.  Bailey,  supra;  Beverley  v.  Lincoln  Gas  Light  Co.,  supra  ;  Dean 
of  Rochester  v.  Pierce,  1  Campb.  466;  Fishmongers'  Co  v.  Rohertsnn,")  Man. 
&  G  131 ;  Lowe  v.  London,  &c,  Ry.  Co.,  18  Q.  B.  633  ;  Landers  v.  Guardians 
of  St.  Neot's,  8  lb.  810.  But  this  latter  distinction  is  questionahle,  Paine  t». 
Strand  Union,  8  Q.  B.  340;  Church  v.  Imperial  Gas  Co.,  supra.  A  contract 
for  salvage  directly  connected  with  the  object  of  incorporation  is  binding, 
although  not  under  seal,  Henderson  v.  Australian  S  N.  Co.,  5  El.  &  Bl.  40!* 
(1855).  So,  the  employ  of  an  accountant  to  examine  the  accounts  of  a  de- 
faulting clerk,  Haigh  v.  Guardians  of  N.  Brierly,  1  El.  Bl.  &  El.  873  (185S) ; 
or  of  an  engineer  to  erect  an  engine,  South  Ireland  Collierv  v.  Waddle,  L. 
R.  3  C.  P.  463  (1S68),  affirmed  4  76.617  (1869)  ;  or  a  contract  "for  the  use  of  a 
dry  dock  belonging  to  the  contracting  corporation,  Wells  v.  Mavor,  &c,  of 
Kingston,  L.  R.  10  C.  P.  402  (1875). 

'Blakelv  Ordnance  Co.,  L.  R.  3  Ch.  App.  154;  Watson  v.  Mid  Wales  Rv. 
Co.,  L.  R.  2  C.  P.  593;  Ex  parte  Chorley,  L.  R.  11  Eq.  157;  Dickson  v.  Vale 
of  Neath  Ry  ,  L.  R.  4  Q.  B.  44;  General  Estates  Cu.,  L.  R.  3  Ch.  App.  758; 
Imperial  Land  Co.,  L.  R.  11  Eq.  478.  The  company  being  held  in  these 
cases  on  the  ground  of  estoppel  arising  out  of  its  professed  ability  to  issue 
negotiable  paper  under  seal.  And  to  like  effect,  without  question  of  estop- 
pel, City  of  Aurora  v.  West,  22  Ind.  88  (1864);  Thomson  v.  Lee  County,  3 
Wall.  327  (1865) ;  Hotchkiss  v.  National  Bank,  21  Wall.  354  (1874) ;  Colson 
v.  Arnot,  57  N.  Y.  253  (1874) ;  Evertson  v.  National  Bank,  66  lb  14  (1876) ; 
Carr  v.  Le  Fevre,  27  Penna.  St.  413  (1856)  ;  Morris  Canal  v.  Fisher,  1  Stock. 
699.  So,  in  general,  of  railroad  bonds,  Commissioners  of  Knox  Co.  v.  Aspin- 
wall,  21  How.  539;  White  v.  Vt.  &  Mass.  R.  R.,  21  How.  575  (1858) ;  Moran 
v.  Comrs.  Miami  Co.,  2  Black  722  (1862);  Murray  v.  Lardner,  '2  Wall.  110 
(1876) ;  Chapin  v.  Vt.  &  Mass.  R.  R.,  8  Gray  575  (1875)  :  Brainerd  v.  N.  Y.  & 
N.  H.  R.  R.,  25  N.  Y.  496,  affirming  10  Bosw.  332  (1862) ;  Connecticut  Mut. 
Ins.  Co.  v.  C.  C.  &  C.  R.  R.,  41  Barb.  9  (1863) ;  Birdsall  v.  Russell,  29  X.  Y. 
220  (1864) ;  Wickes  v.  Adirondack  Co.,  2  Hun  112  11874)  ;  Grand  Rapid,  etc., 
R.  R.  v.  Sanders,  17  lb.  552  (1879)  ;  Junction  R.  R.  v.  Cleneay,  13  Ind.  161 
(1859);  Langston  v.  South  Car.  R.  R.,  2  So.  Car.  248  (1870);  National  Ex- 
change Bank  v.  H.  P.  &  F.  R.  R.,  8  R.  I.  375  (1866).  The  contrary  case  of 
Jackson  v.  Y.  &  C.  R.  R.,  48  Me.  147  (1858),  is  disapproved  by  Evertson  v. 
National  Bank,  66  N.  Y.  14.  This  has  also  been  held  recently  in  England 
of  corporation  debentures  payable  to  bearer,  In  re.  Imperial  Land  Co.,  L.  R. 
11  Eq.  478  (1870) ;  Ex  parte  City  Bank,  L.  R.  3  Ch.  App.  758  (1868) ;  but  is 
not  the  case  with  debentures  which  are  conditional  in  their  form,  Crouch  v. 
Credit  Foncier,  L.  R.  8  Q.  B.  374. 

2 Jackson  v.  Myers,  43  Md.  452  (1875) ;  Muth  v.  Dolfield,  lb.  466;  Central 
Nat.  Bank  v.  Charlottesville  R.  R.  Co.,  5  So.  Car.  1.56  (1873). 


POWER   TO    EXECUTE    BILLS    AND    NOTES.  469 

the  rightful  owner,  was  subject  to  defense.1  Whatever  may 
have  been  the  rule  originally  as  to  contracts  of  corporations, 
it  is  now  established  beyond  dispute,  both  in  England  and  in 
the  United  States,  that  a  corporation  may  make  a  simple  con- 
tract without  using  the  corporate  seal.2 

§  328.  Power  to  Execute  Bills  and  Notes. — It  is  said,  how- 
ever, by  Mr.  Justice  Byles  that  the  power  of  a  corporation  to 
execute  commercial  paper  requires  a  special  authority.3  And 
it  has  been  held  that  where  express  authority  has  been  given 
to  execute  such  paper  for  a  particular  purpose,  and  the  paper 
has  been  executed  without  any  recital  of  the  power  and 
actually  used  for  another  and  unauthorized  purpose,  the  cor- 
poration can  avail  itself  of  this  defense.4  Where  there  is 
express  power  given  to  a  corporation  to  execute  a  bill  or  note, 
the  law  implies  that  the  corporation  is  thereby  subjected  to 
all  ordinary  remedies  against  it  incident  to  such  contract.6 
And  it  may  now  be  regarded  as  the  rule  that  all  corporations 
organized  and  existing  for  the  purposes  of  trade  may  in  the 
course  of  such  trade  issue  bills  and  notes  like  natural  per- 
sons.6 "  The  Statute  of  Anne  confers  this  power  expressly  as 
regards  the  making  of  notes,  and  the  same  power  may  be 
implied  as  to  bills.7 

So  far,  then,  as  such  bills  and  notes  are  incident  to  the 
business  of  the  corporation,  no  express  power  or  capacity  is 

'Crouch  v.  Credit  Foncier  Co.,  L.  R.  8  Q.  B.  374;  In  re  Natal  Investment 
Co.,  L.  R.  3  Ch.  App.  355. 

2 Byles  71  n.;  2  Daniel  496;  1  Parsons  163;  Story  on  Prom.  Notes  g  74;  1 
Dillon  Man.  Corp.  \  374;  Danforth  v.  Schoharie  Turnpike  Co.,  12  Johns. 
227;  Bank  of  Columbia  v.  Patterson,  7  Cranch  305  (1813) ;  Mechanics'  Bank 
v.  Bank  of  Columbia,  5  Wheat.  326;  Legrand  v.  Hampden  College,  5  Munf. 
324  (1817) ;  Union  Bank  v.  Ridgely,  1  Harr.  &  G.  413  (1827) ;  Many  v.  Beek- 
man  Iron  Co.,  9  Paige  188(1841);  American  Ins.  Co.  v.  Oakley,  lb  496 
(1842) ;  Hamilton  v.  Lycoming  Mut.  Ins.  Co.,  5  Penna.  St.  339  (1847)  ;  Com- 
mercial Bank  v.  Newport  Mfg.  Co.,  1  B.  Mon.  13  (1840);  Creswell  v.  Holden, 
3  MacArth.  579  (1879);  Hamilton  v.  Lycoming  Mut.  Ins.  Co.,  5  Penna.  St. 
339  (1S47) ;  Buckley  v.  Briggs,  30  Mo.  452  (I860). 

3  Byles  71. 

4 Byles  9;  Slark  v.  Highgate  Archway  Co.,  5  Taunt.  792. 

5  Byles  71;  Chitty  23;  1  Parsons  167;  Murray  v.  East  India  Co.,  5  B.  & 

Aid.  204. 

•Broughton  v.  Manchester  Water  Works  Co.,  3  B.  &  Aid.  1. 
'Chitty  21  ;  Story  on  Bills  g  79;  ;'•  Anne  c.  22. 


470  CAPACITY CORPORATIONS. 

necessary.1  But  it  has  been  held  in  England  that  a  corpo- 
ration organized  for  the  erection  of  public  works  has  no  such 
power  unless  expressly  conferred;2  and  that  no  such  power 
is  to  be  implied  in  favor  of  a  railroad  company,3  although 
this  is  not  the  American  rule.4  And  it  has  been  held  in  the 
United  States  that  bills  and  notes  may  be  made  by  a  mill 
company,6  or  a  religious  corporation,6  or  an  insurance  com- 
pany.7 And  the  same  power  has  been  declared  to  belong  to 
mining  companies,  manufacturing  companies,  canal  com- 
panies, building  associations,  &c.8 

1  Story  on  Bills  §  79;  Story  on  Prom.  Notes  I  74;  1  Edwards  g  55;  Moss  v. 
Oaklev,  2  Hill  265  (1842) ;  "Kelly  v.  Mayor,  &c,  4  lb.  263  (1843);  Bank  of 
Chillieothe  v.  Chillicothe,  7  Ohio  354  (1836) ;  Moss  v.  Averell,  10  N.  Y.  449 
(1853);  Commercial  Bank  v.  Newport  Mfg.  Co.,  1  B.  Mon.  13  (1S40);  Has- 
call  v.  Life  Association  of  America,  5  Hun  151  (1875) ;  Green's  Brice's  Ultra 
Vir.  155  n.;  Mott  v.  Hicks,  1  Cow.  510  (1823) ;  Came  v.  Brigham,  39  Me.  35 
(1854) ;  Davis  v.  West  Saratoga  Bldg.  Union,  32  Md.  285  (1869) ;  Oxford  Iron 
Co.  v.  Spradley,  46  Ala.  98  (1871);  Monument  Nat.  Bank  v.  Globe  Works, 
101  Mass.  57  (1869) ;  Barry  v.  Merchants'  Exch.  Co.,  1  Sandf.  Ch.'280  (1844) ; 
Partridge  v.  Badger,  25  Barb.  146  (1S57) ;  Olcott  v.  Tioga  R.  R.  Co.,  40  Barb. 
179  (1862);  McCullough  v.  Moss,  5  Denio  577  (1846);  Hamilton  v.  Newcas- 
tle, Ac.,  R.  R.,  9  Ind.  359  (1857) ;  Smith  v.  Eureka  Mills  Co.,  6  Cal.  1  (1856) ; 
Union  G.  M.  Co.  v.  Rocky  Mountain  Nat.  Bank,  2  Col.  248  (1873).  And  this 
is  equally  true  of  a  municipal  corporation,  Clarke  v.  School  District,  3  R.  I. 
199  (1855).  And  of  corporation  bonds  for  money  borrowed  for  corporate 
purposes,  Curtis  v.  Leavitt,  15  N.  Y.  9  (1857) ;  Leavitt  v.  Blatchford,  17  N. 
Y.  521  (1858). 

2Byles  71;  Broughton  v.  Manchester  Water  Works  Co.,  3  B.  &  Aid.  1. 
Nor  can  a  company  which  is  organized  for  carrying  on  works  abroad,  Peru- 
vian Ry.  Co.,  L.  R.  2  Ch.  App.  617  (1867).  In  this  case,  however,  the  broad 
language  of  the  memorandum  of  incorporation  was  held  to  include  the 
power. 

"Overend  v.  Mid  Wales  Ry.  Co.,  L.  R.  1  C.  P.  499. 

401cott  v.  Tioga  R.  R.  Co..  40  Barb.  179  (1862) ;  Smead  v.  Indianapolis  R. 
R.,  11  Ind.  104  (1858).  And  so  as  to  receiving  and  transferring  notes, 
Frye  v.  Tucker,  24  111.  180  (1860) ;  Goodrich  v.  Reynolds,  31  lb.  490  (1863). 

5Smith  v.  Eureka  MMls  Co.,  6  Cal.  1  (1856). 

6Davis  v.  Universalist  Society,  8  Mete.  321  (1844). 

'Barker  v.  Mechanics'  Ins.  Co.,  3  Wend.  94  (1829).  But  not  where  express 
authority  is  given  by  its  charter  to  lend  money  on  certain  enumerated  secu- 
rities not  including  notes  or  bills,  Bacon  v.  Mississippi  Ins.  Co.,  31  Miss.  116 
(1856).  Nor  where  the  discounting  of  the  note  in  question  was  no  part  of 
the  company's  business,  New  York  F.  I.  Co.  v.  Sturges,  2  Cow.  664  (1824). 
Nor  where  the  bill  was  given  in  settlement  of  a  claim  against  another  com- 
pany amalgamated  with  it  by  a  void  deed,  although  the  payee  supposed 
such  deed  to  be  valid,  Balfour  v.  Ernest,  28  L.  J.  C.  P.  170  (1859). 

8So  held  as  to  a  mining  company,  Mahoney  Mining  Co.  v.  Anglo-Cali- 
fornia Bank,  Am.  L.  Reg.,  Feb.,  1882,  p.  100,  U.  S.  S.  C. ;  Mosa  v.  Averell,  10 
N.  Y.  449  (1853).  So,  a  society  for  the  erection  of  a  public  monument,  Hay- 
ward  v.  Pilgrim  Society,  21  Pick.  270  (1838);  or  a  canal  company,  McMas- 
ters  v.  Reed,  1  Grant  Cas.  36  (1854) ;  or  a  turnpike  company,  Lebanon,  &c., 
Road  Co.  v.  Adair,  85  Ind.  244  (1882);  or  a  manufacturing  company,  Mott 


POWER    TO    EXECUTE    BILLS    AND    NOTES.  471 

§  329.  But  a  corporation  possesses  do  power  to  make  a  bill 
of  exchange  or  note  which  is  foreign  to  its  business.1  And 
if  the  note  of  a  corporation  lias  been  executed  in  the  trans- 
action of  its  corporate  business,  this  will  not  be  presumed 
but  must  be  shown  by  the  holder.2  It  has  been  said  with 
some  reason  that  the  power  of  a  corporation  to  make  bill* 
and  notrs  is  co-extensive  with  its  power  to  contract  debts'* 
And  a  corporation  may  in  general  contract  debts  and  borrow 
money  incidentally  to  its  corporate  business,  and  not  other- 
wise.4 The  power  to  borrow  money,  it  is  said,  includes  the 
power  to  borrow,  and  therefore  to  transfer,  a  bill  of  exchange;5 
or  to  transfer  as  collateral  a  promissory  note.6  The  power 
to  borrow  money  implies  power  in  a  corporation  to  make  an 
"obligation  for  its  repayment  in  any  form  not  expressly  for- 
bidden by  law."7 

v.  Hicks,  1  Cow.  513  (1823);  Monument  Nat.  Bank  v.  Globe  Works.  101 
Mass.  57  (1869)  ;  Narragansett  Bank  v.  Atlantic,  &c,  Co..  3  Mete.  282;  Bird 
v.  Daggett,  97  Mass  494  ;  Auerbach  v.  Le  Sueur  Mill  Co  ,  28  Minn.  291  (1881) ; 
or  a  building  association,  Davis  v.  West  Saratoga  Bldg.  Union,  32  Md.  285 
(1869). 

'Thus  it  is  not  within  the  ordinary  powers  of  a  railroad  company  to  con- 
solidate itself  with  another  line  and  to  give  its  note  for  the  purchase  of  a 
Bteamboat,  to  be  used  as  a  means  of  connection  between  the  lines,  Pearce 
v.  Madison  R.  R.  Co.,  21  How.  441  (1858). 

'McCullough  v.  Moss,  5  Denio  580  (1846). 

31  Daniel  356;  1  Parsons  1<'>4:  1  Edwards  \  r^;  Caitron  v.  First  Univ.  So- 
ciety, 46  Iowa  108  (1877);  Pitman  v.  Kintner.  5  Blackf.  253  (1839);  Moss  v. 
Oak'lev,  2  Hill  265  (1842);  Kellev  v.  Mayor,  etc.  4  Ih.  263  (1*43);  Hamilton 
v.  Newcastle,  etc.  R.  R.,  9  Ind  359(1857);  Safford  v.  Wyckoff,  4  Hill  442 
(1842) ;  Auerbach  v.  Le  Sueur  Mill  Co.,  2S  Minn.  291  (1881).  And  authority 
to  a  corporation  officer  to  control  its  business  includes  authority  to  purchase 
necessary  materials  and  give  the  corporation's  note  therefor,  Castle  v.  Bel- 
la.-.! Foundry  Co.,  72  Me.  107  (1881). 

•Favr.  Noble,  12  Cush.  1  (1S53);  Barnes  v.  Ontario  Bank,  19  N.  Y.  156 
(1859);  Clark  v.  Titcomb,  42  Barb.  122(1864);  Bank  of  Chillieothe  v.  Chilli- 
rothe,  7  Ohio  359  (1836)  ;  Union  G.  M  Co.  v.  Rocky  Mountain  Nat.  Bank,  2 
Col.  248  (1873),  affirming  1  lb.  532.  Thus  an  insurance  company  may  bor- 
row money  to  pay  losses  or  raise  money  for  that  purpose  on  a  borrowed 
note.  Furniss  v.  Gilchrist,  I  Sandf.  53  (1847). 

5Holbrook  v.  Basset,  5  Bosw.  176  U859);  Central  Bank  v.  Long,  1  Ih.  202: 
Kumiss  v.  Gilchrist,  1  Sandf.  53  (1847).  So,  an  insurance?  company  may  re- 
ceive a  note  for  a  subscription  to  stock,  without  express  power  to  do  so,  there 
being  no  statutory  prohibition,  Hope  Mutual.  &c,  Ins.  Co.  v.  Perkins,  38  N. 
Y.  404  (1868) ;  and  may  transfer  it,  Mclntire  i>.  Preston,  10  111.  48  (1848}. 

"Clark  v.  Titcomb,  42  Barb.  122  (1S64). 

'Stratton  v.  Allen,  1  C.  E.  Green  233  (1863),  applying  this  rule  to  a  bond 
with  warrant  to  confess  judgment;  Commonwealth  v.  Pittsburgh, 34  Penna. 
St.  496  (1859) ;  Clark  v.  Titcomb,  42  Barb.  122  (1864)  ;  McMastera  l>.  Reed,  1 


472  CAPACITY CORPORATIONS. 

§  330.  Power  of  Corporation  to  Take  and  Transfer  Bills. — 
A  corporation  may  receive  a  bill  of  exchange  for  a  debt  due 
to  it  and  may,  by  implication,  transfer  such  bill.1  And  the 
power  to  transfer  a  bill  or  note  may  be  inferred  from  the 
possession  of  the  paper  by  the  corporation.2  It  has  also  been 
held  that  the  power  to -"sell  and  convey"  all  of  its  property 
implies  power  to  indorse  a  bill  of  exchange  belonging  to  the 
corporation.3  And  an  indorsement  by  a  corporation  may  be 
a  good  transfer  of  the  instrument,  although  it  is  ultra  vires 
and  therefore  not  binding  as  an  indorsement  upon  the  cor- 
porate indorser.4  So,  it  has  been  held  that  the  trustees  of  an 
academy,  authorized  to  procure  subscriptions  for  its  educa- 
tional fund,  may  take  a  note  for  such  subscription.5  And  it 
has  even  been  held  that  a  foreign  corporation,  having  no 
power  to  transact  business  in  the  State,  may  receive  a  note 
there  for  a  subscription  to  its  stock.6  And  a  corporation 
may  transfer  a  note  received  by  it  for  a  stock  subscription,7 

Grant  Cas.  36  (1854) ;  Hays  v.  Gallon  G.  L.  Co..  29  Ohio  St.  330  (1876) ;  Barry 
v.  Merchants'  Exch.  Co.,  1  Sandf.  Ch.  280  (1844) ;  Mead  v.  Keeler,  24  Barb. 
20  (1857) ;  Beers  v.  Phoenix  Glass  Co.,  14  Barb.  358  (1852) ;  Atty.  General  v. 
Life,  &c,  Ins.  Co.,  9  Paige  470  (1842).  This  is  true  likewise  of  municipal 
corporations,  Kelley  v.  Mayor,  &c,  supra;  Bank  of  Chillicothe  v.  Chillicothe, 
supra. 

'Mclntire  v.  Preston,  10  111.  48  (1848).;  Frye  v.  Tucker,  24  lb.  180  (1860) ; 
Planters'  Bank  v.  Sharp,  6  How.  301  (1848)  ;  Hardy  v.  Merriwether,  14  Ind. 
203  (1860) ;  notwithstanding  a  prohibition  against  trading  in  notes,  John  v. 
Farmers'  Bank,  2  Blackf.  367  (1830).  So  it  may  receive  a  note  for  a  sale  of 
land  and  dispose  of  it,  notwithstanding  a  statutory  prohibition  against  deal- 
ing in  commercial  paper,  Buckley  v.  Briggs,  30  Mo.  452  (1860).  Or  it  may 
take  a  note  from  its  treasurer  in  settlement  of  a  misapplication  by  him  of 
its  funds,  German  Congregation  v.  Stegner,  21  Ohio  St.  488  (1871).  And  if 
authorized  to  take  notes  which  "may  be  used  for  the  payment  of  loss  and 
liabilities  and  for  any  other  purpose  connected  with  the  business  of  the 
Co.,"  it  may  transfer  such  note  as  security  for  its  debts,  Great  Western  Ins. 
Co.  v.  Thayer,  4  Lans.  459  (1871). 

*  Brown  v.  Donnell,  49  Me.  421  (I860) ;  Nelson  v.  Eaton,  26  N.  Y.  410  (1863). 
And  the  transfer  may  be  made  by  an  agent  without  the  use  of  the  corpo- 
rate seal,  Garrison  v.  Combs,  7  J.  J.  Marsh.  84  (1831). 

3Savage  v.  Walshe,  26  Ala.  631  (1855). 

4 Smith  v.  Johnson,  3  Hurlst.  &  N.  222  (1858) ;  Brown  v.  Donnell,  49  Me. 
421  (I860). 

5Trustees  of  Amherst  Academy  v.  Cowte,  6  Pick.  427  (1828). 

6Bartlett  v.  Chouteau  Ins.  Co.,  18  Kans.  369  (1877).  Such  note  is  not 
therefore  void,  but  the  corporation  cannot  sue  on  it  without  first  complying 
with  the  State  laws,  American  Ins.  Co.  v.  Wellman,  69  Ind.  413  (1879). 

'Clark  v.  Farrington,  11  Wis.  321-  (1860);  Cornell  v.  Hichens,  lb.  368; 
Blunt  v.  Walker,  lb.  349.  And  this  will  be  valid,  although  the  stock  may 
never  have  been  delivered,  Clark  v.  Farrington,  supra. 


POWER   TO    TAKE    AND    TRANSFER    BILLS.  473 

or  for  insurance  made  by  it.1  An  express  statutory  authority 
should,  however,  be  strictly  construed.  Thus,  if  a  corpora- 
tion is  authorized  by  statute  to  receive  notes  for  insurance 
premiums,  "payable  within  twelve  months  from  date,"  this, 
it  is  held,  will  not  authorize  the  taking  of  a  note  payable 
twelve  months  from  date.2 

§  331.  A  bank  which  has  discounted  and  owns  a  note  may 
transfer  it,  even  though  it  has  been  dishonored;3  and  al- 
though a  subsequent  statute  prohibits  such  transfer.4  And 
by  Massachusetts  statute  a  corporation  may  transfer  a  note 
within  three  years  after  the  expiration  of  its  charter,  the 
corporate  existence  being  continued  for  the  purpose  of  settling 
its  affairs.5 

By  the  National  Banking  Act,  however,  no  authority  is 
given  to  national  banks  to  use  their  fund  in  purchasing  notes, 
and  it  seems  that  a  national  bank  cannot  acquire  title  to  such 
paper  by  purchase  other  than  in  the  usual  form  of  discount.6 
But  where  a  national  bank  has  purchased  a  note  and  brings 
suit  upon  it,  it  has  been  held  that  even  a  prior  indorser  can- 
not question  the  capacity  and  title  of  the  bank.7  So,  one 
who  gives  his  note  to  a  company  cannot  question  the  organ- 
ization of  the  company  as  a  matter  of  defense.8  And  the 
maker  of  such  a  note,  which  has  been  transferred  to  a  bona 
fide  holder  for  value,  is  estopped  from  denying  the  existence 
of  the  corporation.9     So,  the  maker  of  a  note  to  a  foreign  cor- 

1  Brookman  v.  Metcalf,  32  N.  Y.  591  (1865) ;  Farmers'  Bank  v.  Maxwell,  lb. 
579. 

'Osgood  v.  Toplitz,  3  Lans.  184  (1870) ;  but  the  defect  may  be  cured  by  a 
valid  renewal,  Osgood  v.  Toole,  1  Hun  167  (1874). 

•Marvine  v.  Hymers,  12  N.  Y.  223  (1855). 

♦Planters  Bank  v.  Sharp,  6  How.  301  (1848). 

5Folger  v.  Chase,  18  Pick.  63  (1836). 

8Lazear  v.  National  Union  Bank,  52  Md.  7S  (1S79)  ;  First  Nat.  Bank  v. 
Pierson,  24  Minn.  140(1877).  So,  under  the  Minnesota  banking  act,  a  power 
to  discount  is  a  power  not  to  buy  but  to  make  loans  on  such  securities  at 
lawful  discount,  Farmers',  &c,  Bank  v.  Baldwin,  23  Minn.  198  (1S76). 

'National  Pemberton  Bank  v.  Porter,  125  Mass.  333  (1878). 

"Studebacker,  &c,  Mfg.  Co.  v.  Montgomery,  74  Mo.  101  (1881) ;  especially  if 
given  in  payment  of  a  stock  subscription,  Goodrich  v.  Reynolds,  31  111.  490 
(1863). 

"Camp  v.  Byrne,  41  Mo.  52.1  (1S07) :  Nashua  F.  I.  Co.  v.  Moore,  55  N.  H. 
48  (1874). 


474  CAPACITY CORPORATIONS. 

poration  cannot  avail  himself  of  the  defense  that  it  had  no 
power  to  transact  business  in  the  State  where  the  note  was 
given.1  And  where  one  has  given  an  accommodation  note 
to  a  corporation,  and  it  has  been  afterwards  renewed  and 
transferred  to  a  bona  fide  holder  for  value,  the  maker  is  liable 
upon  it  at  suit  of  such  holder.2 

§  332.  Banking  Powers. — It  is  to  be  observed  that  banking 
powers  are  not  in  general  incident  to  the  business  of  a  cor- 
poration, but  must  be  expressly  conferred.  Nor  can  such 
powers  be  inferred  from  an  express  general  authority  to 
"hold,  sell,  grant,  and  dispose  of"  real  or  personal  estate  "by 
mortgage,  or  in  such  other  manner  as  they  shall  deem  most 
proper  for  the  best  interests  of  the  corporation;"3  nor  from 
an  authority  "to  buy  and  sell  drafts  and  bills  of  exchange."4 
And  in  New  York  certificates  of  deposit  bearing  interest  and 
redeemable  after  thirty  years  fall  within  the  prohibition  of 
the  statute  as  to  banking  powers.5  So,  post  notes  by  New 
York  banking  associations,  and  securities  transferred  as  col- 
lateral for  their  payment,  are  void.6  But  certificates  of 
deposit  not  used  nor  intended  to  circulate  as  money  do  not 
seem  to  be  within  the  prohibition  of  the  statute.7  On  the 
other  hand,  the  business  of  discounting  notes,  prohibited  by 
the  New  York  Revised  Statutes,  is  not  conferred  upon  a 
Trust  Company  by  a  charter  authorizing  it  "to  buy  or  receive 
all  kinds  of  property,  to  hold  the  same  in  trust  *  *  *  to 
receive  merchandise  upon  storage  and  deposit,  and  to  advance 
money  upon  property  real  or  personal."8     Nor  has  a  savings 

1  Shook  v.  Singer  S.  M.  Co.,  61  Ind.  520  (1878). 

2 Lucas  v.  Pitney,  3  Dutch.  221  (1858). 

3State  of  Ohio  v.  Granville  Alexandrian  Sociecv,  11  Ohio  1  (1841)  ;  State 
of  Ohio  v.  Washington  Social  Library  Co.,  11  Ohio  96  (1841).  But  taking  a 
note  from  the  corporation  treasurer  in  settlement  of  his  misapplication  of 
its  funds  is  not  within  the  prohibition  of  the  Banking  Act,  German  Congre- 
gation v.  Stegner,  21  Ohio  St.  488  (1871). 

*In  re  Ohio  Life  Ins.,  &c,  Co.,  9  Ohio  291  (1839). 

6  New  York  Life  Ins.,  &c,  Co.  v.  Beebe,  7  N.  Y.  364  (1852). 

6Tylee  v.  Yates,  3  Barb.  222  (1848). 

TTracy  v.  Talmage.  18  Barb.  456  (1854). 

s New  York,  &c,  Trust  Co.  v.  Helmer,  77  N.  Y.  64  (1879),  affirming  12 
Hun  35. 


BANKING    POWEXS.  475 

bank  power  to  discount  commercial  paper  under  the  New 
York  Revised  Statutes.1  But  the  statute  prohibiting  the 
issue  of  circulating  medium  for  money  does  not  include  non- 
negotiable  notes  and  drafts,  which  are  not  within  the  mis- 
chief guarded  against  by  the  statute.2 

The  statutory  prohibition  of  banking  powers  includes  the 
power  of  discounting  notes  or  of  taking  a  note  for  a  loan  and 
deducting  the  interest  in  advance.3  It  has  been  held,  how- 
ever, that  a  savings  bank  charter  authorizing  investments  in 
public  stocks  and  "other  security"  includes  in  its  authority 
loans  on  commercial  paper.4  The  statutory  prohibitions  as- 
to  banking  powers  do  not  extend  to  foreign  corporations  act- 
ing in  their  own  State.  Thus,  a  New  Jersey  corporation 
purchasing  in  that  State  a  New  York  note  at  a  usurious  rate 
of  discount  may  recover  on  it  in  New  York.5 

In  England  all  corporations  except  the  Bank  of  England 
were  prohibited  by  the  statute  of  George  III.  from  making 
bills  or  notes  payable  on  demand  or  within  six  mouths  from 
date,  as  were  also  all  partnerships  of  more  than  six  persons.6 
But  it  has  since  been  enacted  that  corporations  and  partner- 
ships of  more  than  six  members,  doing  business  more  than 
sixty-five  miles  from  London,  may  issue  bills  or  notes  payable 
on  demand.  And  if  for  more  than  £50,  they  may  be  pay- 
able in  London  or  elsewhere  at  any  period  after  date  or  sight. 
And  such  corporations  and  partnerships  may  also  discount 
bills  of  exchange  not  drawn  on  themselves.7  And  by  the 
statute  of  William  IV.,  which  is  still  in  force,  corporations 
and  partnerships  of  more  than  six  members  may  now  do 

'Pratt  v.  Short,  79  N.  Y.  437  (1880) ;  Pratt  v.  Eaton,  lb.  449  (1880) ;  1R.S. 
732  §3  3,  6. 

^Ontario  Bank  v.  Schermerhorn,  10  Paige  109  (1843). 

'Philadelphia  Loan  Co.  v.  Towner,  13  Conn.  249  (1839). 

4Duncan  v.  Md.  Savings  Institution,  10  Gill  &  J.  299  (1838). 

5Hackettstown  Bank  v.  Rea,  6  Lans.  455  (1872). 

•39  and  40  Geo.  III.  c.  28  I  15.  And  see  Bank  of  England  v.  Anderson,  3 
Bing.  N.  C.  589;  4  Scott  50:  2  Keen  328  (1836).  But  this  act  does  not  ap- 
ply to  commercial  firms  of  more  than  six  partners,  Wigan  v.  Fowler,  1 
Stark.  459. 

77  Geo.  JV.  c.  46.  And  as  to  the  amount  limited,  see  3  and  4  Will.  IV.  c. 
83  §  2;  7  and  8  Vict.  c.  32  \  26. 


476  CAPACITY CORPORATIONS. 

business  as  bankers  in  London,  but  may  not  issue  bills  or 
notes  payable  in  less  than  six  months  from  their  date.'  It 
does  not,  however,  follow  that  a  corporation's  bill  or  note, 
though  prohibited  by  the  English  Banking  Act,  is  therefore 
void.  Such  instrument  is  valid  and  binding  on  the  corpora- 
tion in  the  hands  of  a  bona  fide  holder  for  value  before 
maturity.2 

§  333.  Loans  by  Corporations. — A  corporation  has  in  gen- 
eral no  power  to  loan  its  funds  and  receive  bills  of  exchange 
or  other  commercial  paper  for  payment.3  But  where  it  is 
authorized  by  charter  to  advance  money  on  goods,  it  may 
accept  a  bill  of  exchange  drawn  against  a  consignment  to  be 
made.4  Where  a  corporation  is  authorized  to  receive  note3 
in  the  course  of  its  business,  but  forbidden  to  exercise  any 
banking  power,  a  note  transferred  to  it  will  be  presumed  to 
have  been  taken  lawfully  in  the  course  of  business.5  And 
one  who  borrows  money  from  a  corporation  cannot  in  his 
own  defense  question  its  power  to  lend.6     Nor  can  one  who 

'3. and  4  Will.  IV.  c.  98  \  3. 

2Broughton  v.  Manchester  Water  Works  Co.,  3  B.  &  Aid.  1;  Wigan  v. 
Fowler,  1  Stark.  459;  Pickaway  Co.  Bank  v.  Prather,  12  Ohio  St.  497  (1861). 
"  If  there  was  an  utter  want  of  power  in  the  corporation  to  make  such  a 
contract  as  the  agreement  upon  its  face  purports  to  he,  it  is  of  no  validity 
either  in  the  hands  of  the  corporation  or  of  its  assignee;  the  hank  knew, 
and  the  assignee  must  he  presumed  to  know,  the  law,  and  as  it  appears  upon 
the  face  of  the  contract  that  it  is  not  warranted  hy  the  charter,  the  assignee 
cannot  he  presumed  to  have  taken  it  in  good  faith  and  without  notice  of  its 
invalidity.  But  if  a  negotiable  seeurit}'  given  to  or  made  by  a  corporation 
appears  upon  its  face  to  be  such  as  the  corporation  might  make  or  receive 
under  its  charter,  and  the  assignee  receives  it  before  due  and  without  notice, 
actual  or  constructive,  of  its  real  invalidity,  it  is  an  available  security  in  his 
hands,"  Peck,  J.,  in  Pickaway  Co.  Bank  v.  Prather,  supra,  p.  512. 

3  Waddill  v.  Ala.,  &c,  R.  R.  Co.,  35  Ala.  323  (1859) ;  Grand  Lodge  v.  Wad- 
dill.  36  lb.  319  (I860).  So,  in  New  York,  of  a  savings  bank,  Pratt  v.  Eaton, 
79  N.  Y.  449  (1880).  But  the  corporation  may  in  such  case  recover  the 
money  loaned  in  an  action  for  moneys  had  and  received.  Waddill  v.  Ala.,  &c, 
R.  R.  Co.,  supra.  But  see,  contra,  Grand  Lodge  v.  Waddill,  supra,  where  the 
former  case  is  distinguished  incorrectly  as  turning  on  the  officers'  want  of 
authority  to  bind  the  corporation. 

*Munn  v.  Commission  Co.,  15  Johns.  44  (1818). 

5 Hart  v.  Missouri,  &c,  Ins.  Co.,  21  Mo.  91  (1855). 

61  Daniel  362,  397;  Green's  Brice's  Ultra  Vires  619  n.,  375  n. ;  Poock  v. 
Lafayette  Building  Assoc,  71  Ind.  357  (1880) ;  State  Board  v.  Citizens',  &c, 
Ry.  Co  ,  47  lb.  407  ;  Farmington  Sav.  Bank  v.  Fall,  71  Me.  49  (1S80) ;  Massy 
v.  Building  Association,  22  Kans.  624  (1879).  This  is  so,  too,  in  case  of  a  trust 
deed  securing  a  loan  on  note  in  violation  of  the  National  Bank  Act,  National 
Bank  v.  Matthews,  8  Otto  621  (1878). 


ACCOMMODATION    PAPER.  477 

makes  a  note  to  a  corporation  at  suit  of  the  indorsee  question 
its  power  to  indorse.1 

§  334.  Accommodation  Paper. — Giving  accommodation 
paper  is  never  incident  to  the  business  of  a  corporation  and 
is  therefore  ultra  vires  and  unlawful.2  And  such  paper  can- 
not afterward  be  ratified  by  the  corporation.3  So,  a  national 
bank  cannot  become  an  accommodation  indorser.*  Nor  can 
a  corporation  without  express  power  guarantee  the  debt  of 
another.5  Where,  however,  a  railroad  company  transfers 
property  with  a  guaranty  and  receives  the  proceeds,  it  has 
been  held  to  be  estopped  from  defense  on  the  ground  of  its 
want  of  power.6  So,  it  has  been  held  that  in  transferring 
township  bonds  given  to  a  railroad  company  to  aid  in  its  con- 
struction the  company  may  guarantee  the  bonds.7  In  such 
cases,  however,  the  guaranty  is  an  original  contract  of  the 
corporation  for  its  own  benefit,  the  consideration  moving  to 
itself  and  not  to  the  person  whose  debt  is  guaranteed. 

A  corporation  may  exceed  its  powers  in  general,  or  in 
some  special  instance  only,  and  the  term  ultra  vires  is  not 
properly  applicable  to  a  corporation's  abuse  of  the  general 
power  possessed  by  it.8  Thus,  where  a  corporation  may  take 
notes  in  its  business  but  exceeds  its  power  by  taking  a  note 
for  a  stock  subscription,  the  note  will  be  good  in  the  hands 

'Brown  v.  Donnell,  49  Me.  421  (1860). 

*1  Daniel  361;  1  Parsons  166;  Green's  Brice's  Ultra  Vires  252;  Bank  of 
Genesee  v.  Patchin  Bank,  13  N.  Y.  309  (1855);  Mtna,  Nat.  Bank  v.  Charter 
Oak  Ins.  Co.,  50  Conn.  167  (1882);  Morford  v.  Farmers'  Bank  of  Saratoga 
Co.,  26  Bark  568  (1857);  Bridgeport  City  Bank  v.  Empire  Stone  Dressing 
Co.,  30  Barb.  421  (1859).  And  such  paper  is  void  even  in  the  hands  of  the 
indorsee,  Smead  v.  Indianapolis  R.  R.,  11  Ind.  109  (1858). 

3 Hall  v.  Auburn  Turnpike  Co.,  27  Cal.  255  (1865) ;  Smead  v.  Indianapolis 
R.  R.,  supra. 

4 Nat,  Bank  of  Gloversville  v.  Wells,  79  N.  Y.  498  (1880),  obiter. 

5Madison  PI.  Road  Co.  v.  Watertown  P.  R.  Co.,  7  Wis.  59  (1859).  But  in 
Madison,  &c,  R.  R.  v.  Norwich  Saving  Sue.,  24  Ind.  457  (1865),  it  was  held 
that  the  sale  and  guaranty  of  the  bond  of  another  company  was  within  the 
general  powers  of  a  corporation  and  that  the  fact  that  such  power  had  been 
exercised  by  it  for  the  accommodation  of  the  other  company  could  not  be 
set  up  in  defense  against  a  bona  fide  holder  for  value. 

6Arnot  v.  Erie  Ry.  Co.,  5  Hun  60S  (1875) ;  Rernsen  v.  Graves,  41  N.  Y.  471. 

'Railroad  Co.  v.  Howard,  19  Wall.  412  (1868). 

8Eastern  Co.  Ry.  v.  Hawkes,  5  H.  L.  C.  331;  Bissell  v.  Mich.  S.  R.  R.,  22 
N.  Y.  289;  Monument  Nat.  Bank  v.  Globe  Works,  101  Mass.  57  (1S69). 


478  CAPACITY — CORPORATIONS. 

of  a  bona  fide  bolder,  upon  the  principle  that  otherwise  the 
general  power  of  taking  and  transferring  notes  abused  in  this 
case  would  leave  a  bona  fide  bolder  without  means  of  in- 
formation as  to  the  abuse  or  protection  against  it.1  If  the 
act,  therefore,  is  within  the  usual  scope  of  the  corporation's 
ordinary  business  and  powers,  it  is  not  technically  ultra  vires 
and  defensible  at  suit  of  such  holder  for  value.  So,  an  ac- 
commodation bill  or  note,  although  executed  ultra  vires,  is 
good  in  the  hands  of  a  bona  fide  holder  for  valine.2  But  if  a 
bill  or  note  is  executed  -by  a  corporation  in  violation  of  an 
express  statute,  e.  g.  of  the  Banking  Act,  it  is  void  even  in 
the  hands  of  a  bona  fide  holder.3  If,  on  the  other  hand,  a 
corporation  has  exceeded  its  powers  in  drawing  a  check, 
its  payment  to  the  rightful  holder  would  still  be  gooa  as 
between  the  bank  paying  and  the  corporation  drawing  it.4 

§  335.  Presumption  of  Validity. — As  has  been  said,  where 
a  corporation  has  power  to  take  bills  and  notes  in  the  course 
of  its  business  but  not  for  banking  purposes,  it  will  be  pre- 
sumed to  have  taken  the  paper  sued  upon  lawfully  until  the 
contrary  is  made  to  appear.5  And  in  general  where  a  cor- 
poration having  a  general  power  to  make  bills  or  notes  exe- 
cutes such  paper,  it  will  be  presumed  to  have  been  lawfully 
executed  and  will  be  good  in  the  hands  of  a  bona  fide  holder 
for  value.6     So,  where  a  foreign  corporation  executes  a  note, 

1  Wilmarth  v.  Crawford,  10  Wend.  341  (1833) ;  Marburg  v.  Lloyd,  21  Kans. 
545  (1879). 

2 Bird  v.  Daggett,  97  Mass.  494  (1867);  Monument  Nat.  Bank  v.  Globe 
Works,  101  lb.  57  (1869). 

3  Root  v.  Godard,  3  McLean  102  (1842);  Hayden  v.  Davis,  3  McLean  276 
(1843). 

*Mahoney  v.  East  Holyford  Co.,  L.  R.  7  H.  L.  869  (1875). 

5 Hart  v.  Mo.  State  Mut.,  &c,  Ins.  Co.,  21  Mo.  91  (1855). 

61  Daniel  361;  1  Edwards  $  55;  1  Parsons  165;  Supervisors  v.  Schenck, 
-5  Wall.  784  (1866) ;  Stoney  v.  American  L.  Ins.  Co.,  11  Paige  635  (1845) ;  Wil- 
marth v.  Crawford,  10  Wend.  343  (1833) ;  Nelson  v.  Eaton,  26  N.  Y.  410  (1863) ; 
-Oxford  Iron  Co.  v.  Spradley,  46  Ala.  98  (1871);  Mclntire  v.  Preston,  10  111. 
48  (1848).  Thus,  an  overdraft  on  a  bank  account  is  presumptively  an  exer- 
cise of  its  express  power  of  borrowing  money  and  signing  checks,  Mahoney 
Mining  Co.  v.  Anglo-Californian  Bank,  Am.  L.Reg.,  Feb.',  1882,  p.  100,  U.  S. 
S.  C.  So,  a  promissory  note  is  presumptively  good  execution  of.  a  power  to 
"  make  contracts,"  Mitchell  v.  Rome  R.  R.,  17  Ga.  574  (1855).  "  If  they  can 
make  a  valid  promissory  note  for  any  purpose,  this  note  must  be  held  good 


PRESUMPTION    OF    VALIDITY.  479 

it  will  be  presumed  to  be  valid  in  the  State  where  it  was 
made.1  If,  however,  it  appears  on  the  face  of  the  paper  that 
the  powers  of  the  corporation  have  been  exceeded,  this  would 
be  notice  of  that  fact  to  all  holders 2 

If  the  corporation  has  not  properly  exercised  its  power  in 
making  such  paper,  advautage  may  be  taken  of  this  by  way 
of  defense  under  the  plea  of  general  issue.3  So,  if  it  has 
exceeded  its  power  by  making  an  accommodation  note,  this 
defense  is  admissible  under  a  plea  of  general  issue,  and  need 
not  be  pleaded  specially.4 

till  some  cause  shall  be  shown  why  it  is  not  so,"  Savage,  C.  J.,  in  Barker  v. 
Mechanics'  Ins.  Co.,  3  Wend.  97  (1829). 

'New  York  Floating  Derrick  Co.  v.  New  Jersey  Oil  Co.,  3  Duer  648  ( 1854  . 

21  Edwards  §55;  1  Parsons  166.  See  Broughton  v.  Manchester  Water 
Works  Co.,  3  B.  &  Aid.  9  (1819),  Bayley,  J.,  saying  in  this  case  :  "  Here,  upon 
the  lace  of  the  instrument,  the  acceptance  appears  to  be  by  a  corporation, 
and  all  corporations  are  prohibited  from  owing  any  money  on  a  security  of 
this  description,  unless  it  has  more  than  six  months  to  run.  I  think,  *  *  * 
consequently,  that  this  action  cannot  be  supported." 

3Byles  71;  Hill  v.  Manchester,  &c,  Water  Works  Co.,  5  B.  &  Ad.  866. 

*Hall  v.  Auburn  Turnpike  Co.,  27  Cal.  255  (1865). 


480  CAPACITY — MUNICIPAL   CORPORATIONS. 


II.    MUNICIPAL    CORPORATIONS. 

336.  Contracts — Seal — Negotiability. 

337.  Municipal  Warrants. 

338.  Express  Authority — When  Necessary. 

339.  Implied  Authority. 

340.  Negotiable  Distinguished  from  Non-negotiable  Instruments. 

341.  Statutory  Requirements. 

342.  Popular  Consent  Required. 

343.  Defenses — Unlawful  Issue. 

344.  Irregular  Execution. 

345.  Estoppel  by  Recitals. 

346.  by  Corporate  Acts. 

347.  Statutes — Proof  of  Compliance — Ratification. 

§  336.  Contracts — Seal — Negotiability. — Cities  and  other 
municipalities  organized  for  purposes  of  local  government 
have  in  many  respects  the  powers  and  liabilities  of  private 
corporations.  It  is  to  be  remembered,  however,  that  they 
exist  not  for  purposes  of  trade,  but  for  objects  of  a  political 
character  only,  and  their  powers  are  those  which  are  inci- 
dental and  necessary  to  the  existence  of  such  bodies. 

It  was  formerly  held,  in  England,  that  such  bodies  could 
only  contract  under  their  corporate  seal.1  As  in  the  case  of 
private  corporations,  however,  it  is  now  established  in  the 
United  States  at  least  that  municipal  corporations  may  bind 
themselves  by  simple  contracts.2 

And  a  municipal  corporation  may  also  give  a  negotiable 
instrument  under  seal.  This  character  of  negotiability  be- 
longs to  bonds,  with  or  without  interest  coupons,  which  are 
in   form  and  intention   negotiable.3     And,  apart   from   the 

1  Mayor,  &c.,  of  Ludlow  v.  Charlton,  6  M.  &  W.  815  (1840). 

2Fourth  School  District  v  Wood,  13  Mass.  199  (1816);  Union  Bank  v. 
Ridgely,  1  Harr.  &  G.  413  (1827);  Mechanics  Bank  v.  Bank  of  Columbia,  5 
Wheat.  326  (1820) ;  Legrand  v.  Hampden  Sydney  College,  5  Munf.  324  (1817). 
So,  as  to  unsealed  coupons,  City  of  San  Antonio  v.  Gould,  34  Tex.  77  (1870). 
But  a  municipal  corporation  cannot  give  a  guaranty  of  commercial  paper, 
although  it  might  have  the  power  to  receive  or  dispose  of  it,  Carter  v. 
DuliuqYie,  35  Iowa.  416  (1872). 

3Green's  Brice's  Ultra  Vires  177n. ;  1  Dillon  Mun.  Corp.  \  405;  1  Edwards 
§48;  Gelpcke  v.  City  of  Dubuque,  1  Wall.  175  (1863);  Thomson  v.  Lee 
County,  3  lb.  327  (1865) ;  Commissioners  of  Marion  Co.  v.  Clark,  4  Otto  278 
(1S76)  ;  Bank  of  Rome  v.  Rome,  19  N.  Y.  20  (1859) ;  Gould  v.  Town  of 
Sterling,  23  lb.  464  (1861) ;  Marsh  v.  Little,  1  Hun  554  (1874) ;  S.  C,  4  T.  & 
C.  116;  Lindsley  v.  Diefendorf,  43  How.  Pr.  357(1872);  Force  v.  City  of 
Elizabeth,!  Stew.  Eq.  406;  Boyd  v.-  Kennedy,  9  Vroom  146;  Society   for 


MUNICIPAL    WARRANTS.  481 

question  of  authority  to  issue  such  bond,  a  bona  fide  holder 
of  it  for  value  before  maturity  is  entitled  to  hold  and  recover 
upon  it  clear  of  defenses  existing  against  the  original  holder.1 
Such  bonds  are  to  be  regarded  in  the  main  as  commercial 
paper,  and  holders  of  them  are  necessary  parties  to  a  suit  in 
equity  commenced  by  taxpayers  to  obtain  an  injunction 
against  collection  of  taxes  for  their  payment.2 

§  337.  Municipal  "Warrants. — Orders,  drafts  and  warrants 
which  are  drawn  for  payment  of  municipal  debts  by  one 
public  officer  on  another  are  not,  however,  negotiable  and 
are  only  transferable  subject  to  defenses  originally  existing 
against  them.3  And  the  authority  of  the  officer  giving  such 
warrant  is  always  open  to  examination,  into  whatever  hands 
the  warrant  may  come.4  So,  no  purchaser  can  recover  on 
such  a  warrant  issued  ultra  vires  and  known  by  the  original 
holder  to  have  been  so  issued.5  If,  however,  the  warrant  be 
made  expressly  negotiable  in  form,  it  will   be  negotiable.6 

Savings  v.  New  London,  29  Conn.  174  (1860);  Town  of  Eagle  v.  Kolm,  84 
III.  292  (1876);  Craig  v.  City  of  Vicksburg,  31  Miss.  216  (1856);  City  of 
Aurora  v  West,  22  Ind.  88  (1864);  Board  of  Commissioners  v.  Bright,  18 
lb.  93  (1862) ;  Durant  v.  Iowa  County,  1  Woolw.  C.  C.  72  (1864) ;  Arents  v. 
Commonwealth,  18  Gratt.  750  (1868);  Weith  v.  Citv  of  Wilmington,  68  N. 
C.  24 ;  Belo  v.  Commrs.  of  Forsyth  Co.,  76  Tb.  489  (1877) ;  City  of  San  Antonio 
v.  Lane,  32  Tex.  405  (186'.));  Board  v.  T.  &  P.  Ry.  Co.,  46/6.316(1876); 
Dutchess  Co.  Ins.  Co.  v.  Hachfield,  1  Hun  675  (1874)  ;  Society  for  Savings  v. 
New  London,  29  Conn.  174  (1860)  ;  Independent  School  District  v.  Hall,  20 
Cent.  L.  J.  112,  5  Sup.  Ct.  Rep.  371  (U.  S.  S.  C.  1885).  Contra,  Diamonds. 
Lawrence  County,  37  Penna.  St.  353  (1860),  as  to  which,  see  Miller  v.  Race, 
1  Smith  L.  C.  819. 

'Grand  Rapids,  &c,  R.  R.  Co.  v.  Sanders,  17  Hun  552  (1879) ;  Cromwell  v. 
County  of  Sac,  tUJtto  51  (1877). 

2  Board  v.  T.  &^.  R.  W.  Co.,  46  Tex.  316  (1876). 

M  Dillon  Mun.  Corp.  \  406;  1  Daniel  393;  1  Edwards  §51;  Mavorv.  Ray, 
19  Wall.  478  (1873) ;  Steinbeck  v.  Liberty  Township,  22  Ohio  St.  144  (1871)  ; 
Hyde  v.  County  of  Franklin.  27  Vt.  185  (1855)  :  Smith  v.  Inhabts.  of  Cheshire, 
13  Gray  318  (1859);  Fox  v.  Shipman,  19  Mich.  218  (1869);  Dana  v.  San 
Francisco,  19  Cal.  486  (1861) ;  Emery  v.  Mariaville,  56  Me.  315  (1868) ;  Sturte- 
vant  v.  Liberty,  46  lb.  457  (1859) ;  East  Union  Township  v.  Ryan,  86  Penna. 
St.  459  (1878)  ;  Ohio  v.  Treasurer  <  if  Liberty  Township,  22  Ohio  St.  144  (1S71 )  ; 
State  v.  Huff,  63  Mo.  288  (1876);  School  Directors  v.  Fogleman,  76  III.  189 
(1875);  Newell  v.  School  Directors,  68  lb.  514  (1873) ;  Clark  v.  Des  Moines, 
19  Iowa  199,  215  (1865) ;  School  District  v.  Stough,  4  Neb.  357  (1876). 

4Taft  v.  Pittsford,  28  Vt.  286  (1856). 

''Salamanca  Township  v.  Bank,  22  Kans.  696  (1879). 

81  Edwards  §51  ;  Kelley  v.  Mayor.  &c,  of  Brooklyn,  4  Hill  265  (1843); 
Crawford  County  v.  Wilson,  7  Ark.  214  (1846).     And  payment  of  such  war- 

2f 


482  CAPACITY MUNICIPAL    CORPORATIONS. 

Aud  although  such  voucher  may  not  be  negotiable,  it  has 
been  held  that  a  payee  who  has  given  it  to  another  as  collat- 
eral and  lost  it  by  fraudulent  diversion,  cannot  recover  it  in 
replevin  from  a  bona  fide  holder  without  payment  of  the  full 
amount  paid  by  him  for  it.1  Such  an  order  is  equivalent  to 
a  note  or  acceptance,  and  the  corporation  drawing  it  may  be 
sued  as  maker  or  acceptor.2 

§  338.  Express  Authority — When  Necessary. — A  munici- 
pal corporation  has,  in  general,  no  power  to  borrow  money 
or  give  a  bill  or  note  for  its  payment  without  express  statu- 
tory authority,  and  it  cannot  be  held  liable  for  such  loan  or 
on  such  paper,  although  the  money  obtained  has  been  ex- 
pended for  municipal  purposes.3  Nor  can  such  corporation 
issue  bonds  without  express  authority  in  order  to  raise  money 
for  the  payment  of  its  lawful  debts.4  The  power  in  a  muni- 
cipal corporation  to  issue  bills  and  notes  must  be  expressly 
given,5  or  clearly  implied  in  the  exercise  of  express  powers.8 

§  339.  Implied  Authority. — Thus,  the  ordinary  police  pow- 
ers given  in  a  city  charter  will  not  authorize  it  to  issue  bonds 
for  building  a  plank  road,  and  such  bonds  will  be  void  even 
in  the  hands  of  a  bona  fide  holder.7  On  the  other  hand, 
authority  by  charter  "  to  establish  and  regulate  markets " 
has  been  held  to  cover  the  purchase  of  a  market  site  and  the 

rant  to  the  bearer  is  a  good  defense  against  the  rightful  owner,  where  it  has 
been  made  in  good  faith,  Sweet  v.  County  Commissioners,  16  Minn.  1W7 
(1871).  And  it  has  been  held  in  Vermont  that  a  holder  of  such  warrant  can 
sue  on  it  in  his  own  name,  Dalrymple  v.  Whittingham,p6  Vt.  355  (1854). 
But  see,  contra,  Klein  v.  Supervisors,  54  Miss.  254  (1877).  And  as  regards 
negotiability  to  the  extent  of  shutting  oat  defenses  to  such  warrants,  see, 
als,,,  contra',  Mayor  v.  Ray,  19  Wall.  478  (1873). 

lTalty  v.  Freedman's  Trust  Co.,  1  MacArth.  522  (1874). 

*Steel  v.  Davis  County,  2  G.  Greene  469  (1850). 

'Town  of  Hackettstown  v.  Swackhamer,  8  Vroom  191  (1874). 

*1  Edwards  \  904. 

51  Daniel  393;  Dively  v.  City  of  Cedar  Falls,  21  Iowa  565  (1866) ;  Clark  v. 
City  of  Des  Moines,  19  lb.  199  (1865);  Mayor,  &c,  of  Wetumpka  v.  We- 
tumpka  Wharf  Co.,  63  Ala.  611  (1879) ;  Gause  v.  City  of  Clarksville,  5  Dill. 
165  11879) ;  Wilson  v.  City  of  Shreveport,  29  La.  An.  673  (1877).  And  such 
bonds  do  not  possess  the  qualities  of  negotiable  paper,  unless  they  are  issued 
under  such  authority,  Hopper  v.  Town  of  Covington,  8  Fed.  Rep.  777  (1881). 

•Mayor  of  Nashville  v.  Ray,  19  Wall.  468  (1873). 

'Chisholm  v.  City  of  Montgomery,  2  Woods  584  (1875). 


IMPLIED    AUTHORITY.  483 

bonds  given  for  it.1  And  in  New  Hampshire,  where  the 
selectmen  of  a  town  gave  a  promissory  note  for  the  enlist- 
ment of  soldiers  during  the  war,  it  was  held  that  there  was  a 
presumption  in  favor  of  their  authority  to  do  so,  until  the 
contrary  was  shown.2 

In  the  absence  of  express  legislative  authority  municipal 
corporations  have  no  power  to  contract  debts  or  issue  securi- 
ties in  aid  of  extraneous  objects.3  Thus,  they  cannot  issue 
bonds  to  aid  in  the  construction  of  a  railroad,4  or  to  pay  for 
a  subscription  to  its  stook,  not  expressly  authorized.5 

But  it  is  said  that  the  power  to  contract  a  debt  implies  the 
power  to  borrow  money  for  like  purpose,6  and  to  make  a  bill 
of  exchange  or  other  commercial  paper  for  its  payment.7 
And  this  latter  proposition,  as  well  as  the  former,  has  been 
applied  to  municipal  corporations.8  This  application  is,  how- 
ever, condemned  by  Judge  Daniel  on  the  authority  of  Judge 
Dillon,  although  it  seems  to  be  supported  by  the  cases  de- 
cided.9 

'Ketehum  v.  City  of  Buffalo,  14  N.  Y.  356  (1856). 

*Shackford  v.  Newington,  46  N.  H.  415  (1866). 

"Town  of  South  Ottawa  v.  Perkins,  4  Otto  262  (1876) ;  Pendleton  County 
v.  Amy,  13  Wall.  297  ;  Kenicott  v.  Supervisors,  16  lb.  452;  St.  Joseph  Town- 
ship v.  Rogers,  lb.  644;  Town  of  Coloma  v.  Eaves,  2  Otto  484;  Hawkins  v. 
Carroll  County,  50  Miss.  735  (1874). 

*Sy.kes  v.  Mayor,  &c,  of  Columbus,  55  Miss.  115  (1877). 

sWells  v.  Supervisors,  12  Otto  625  (1880J ;  Hancock  v.  Chicot  County.  32 
Ark.  575  (1877). 

6  Mills  v.  Gleason,  11  Wis.  470  (1860) ;  State  v.  Common  Council  of  Madi- 
son, 7  76.  688  (1858) ;  Lynde  v.  The  County,  16  Wall.  6  (1S72). 

71  Daniel  356;  1  Edwards  \  55;  1  Parsons  164  ;  Stratton  v.  Allen,  1  C.  E. 
Green  233  (1863) ;  Clark  v.  Titeomb,  42  Barb.  122  (1S64) ;  Meed  v.  Keeler.  24 
lb.  20  (1857);  Beers  v.  Phoenix  Glass  Co.,  14  lb.  358  (1852);  Att'y  Gen.  v. 
Life  Ins.  Co.,  9  Paige  470  (1840);  Barry  <\  Merchants'  Exch.  Co.,  1  Sandf. 
280  (1844) ;  McMasters  v.  Reed,  1  Grant  Cas.  36  (1S54);  Hays  v.  Galion 
Gas  Light  Co.,  29  Ohio  St.  330  (1876);  Cattron  v.  First  Univ.  Soc,  46  Iowa 
108  (1877) ;  Pittman  v.  Kintner.  5  Black f.  253  (1S39) ;  Hamilton  v.  Newcastle, 
&c.,  R.  R.,  9  Ind.  359  (1857);  Moss  v.  Oakley,  2  Hill  265  (1S42) ;  Safford  v. 
Wyckoff,  4/6.  442  (1842). 

'Commonwealth  v.  Pittsburgh,  34  Penna.  St.  496  (1859) ;  Kelley  v.  Mayor, 
&c.,  4  mil  263  (1843);  Bank  of  Chillicothe  v.  Chillicothe,  7  Ohio  359  (1836). 
So.  a  fortiori.,  the  power  to  borrow  money  to  pay  a  debt  implies  the  power 
to  issue  a  negotiable  bond  for  it,  Merrill  v.  Town  of  Monticello,  22  Fed.  Rep. 
589  (U.  S.  C.  C.  Ind.  1884). 

91  Daniel  394;  1  Edwards  g  48;  Dillon  on  Mun.  Bonds  g  6.  But  see  City 
of  Williamsport  v.  Commonwealth,  84  Penna.  St.  487  (1877),  Agnew,  Wood- 
ward and  Sterrett,  JJ.,  dissenting. 


484  CAPACITY MUNICIPAL   CORPORATIONS. 

An  incorporated  school  district  having  express  power  to 
borrow  money  for  the  erection  of  a  school  building,  has 
authority  as  a  neoessary  incident  to  secure  its  payment  by  a 
promissory  note.1  Or  it  may  give  such  note  for  a  loan  ob- 
tained and  used  for  the  purpose  of  paying  a  debt  incurred 
for  such  building.2  So,  it  has  been  held  that  a  city  may 
give  its  negotiable  bonds  under  an  authority  given  by  its 
charter  to  issue  bonds  to  a  railroad  company  in  aid  of  con- 
struction.3 And  where  power  to  borrow  money  is  expressly 
given,  it  is  said  to  carry  with  it  incidentally  the  power  to 
issue  bonds  or  other  evidences  of  debt.4  So,  if  a  city  can 
lawfully  create  a  debt  for  paving  and  grading  streets,  it  may, 
without  express  authority,  issue  bonds  for  the  same  object.5 
In  like  manner,  it  may  lease  rooms  for  the  use  of  the  com- 
mon council  and  give  its  note  in  payment  of  the  rent.6  But 
count}7  commissioners  authorized  by  statute  to  provide  for 
the  erection  of  public  buildings  cannot  issue  negotiable  bonds 
for  that  purpose  without  further  authority.7 

§  340.  Negotiable  Distinguished  from  Non-negotiable  In- 
struments.— A  distinction  has  been  made  between  the  power 
to  issue  negotiable  and  non- negotiable  evidences  of  debt  as 
incidental  to  the  power  of  contracting  debt  or  borrowing 
money.  And  it  has  been  held  that  for  the  issue  of  a  nego- 
tiable bond  or  note,  which  will  be  unassailable  in  Hie  hands 

1Montague  v.  Church  School  District,  5  Vroom  218  (1870).  But  in  New 
Hampshire  school  districts  had  no  authority  to  borrow  money  on  their  note 
for  such  purpose  prior  to  the  Act  of  1855,  Weare  v.  School  District,  44  N.  H. 
189  (1862).  And  where  the  school  district  has  authority  to  contract  the  debt 
for  which  its  note  is  given,  the  burden  of  proving  this  lies  on  the  holder  of 
the  note,  School  District  v.  Thompson,  5  Minn.  280  (1861). 

2Clarke  v.  School  District,  3  R.  I.  199  (1855);  Baker  v.  Chambles,  4  G. 
Greene  428  (1854) ;  Sheffield  School  Township  v.  Andress,  56  Ind.  157  (1877). 

3City  of  Vicksburg  v.  Lombard,  51  Miss.  Ill  (1875).  And  the  validity  of 
such  a  bond  is  not  affected  by  the  fact  of  the  interest  being  made  payable 
at  a  place  outside  of  the  State,  lb.  So,  too,  as  to  the  power  to  make  such 
bond  negotiable  in  form,  Andover  v.  Grafton,  7  N.  H.  294  (1834).  But  see 
contra,  Knapp  v.  Mayor,  &c,  of  Hoboken,T0  Vroom  394  (1877). 

*State  of  Ohio  v.  Trustees  of  Goshen  Township,  14  Ohio  St.  569  (1863). 

5City  of  Williamsport  v.  Commonwealth,  84  Penna.  St.  487  (1877). 

"Douglas  v.  Mayor,  &c,  of  Virginia  City,  5  Nev.  147  (1869). 

'Claiborne  County  v.  Brooks,  111  U  S.  400  (1883).  But  see,  contra,  Clarke 
Company  v.  Board  of  Supervisors  of  Culver  County,  6  Minn.  204  (1861) 


STATUTORY  REQUIREMENTS.  485 

of  a  bona  fide  bolder  for  value  before  maturity,  authority 
must  be  either  expressly  given  or  clearly  implied.1  And  a 
distinction  has  been  made  in  favor  of  a  prohibition  of  all 
interest-bearing  obligations  made  without  express  authority 
by  the  agent  of  a  municipal  corporation.2  Neither  can  a  city 
issue  bills  or  notes  intended  to  circulate  as  money  without 
express  authority  ;3  especially  where  such  issue  is  prohibited 
generally  by  statute  to  all  persons  and  corporations.4 

It  may  now  be  regarded  as  the  established  rule  that  a 
municipal  corporation  may  issue  bonds  without  express 
authority  for  a  debt  lawfully  contracted  in  the  performance 
of  its  municipal  duties.5  Thus,  it  may  give  its  bonds,  as  has 
been  said,  for  the  purchase  of  a  site  for  a  market,  such  pur- 
chase being  authorized  by  a  general  power  in  its  charter  as 
to  markets.6  And  where,  in  the  execution  of  powers  ex- 
pressly conferred,  it  becomes  necessary  to  borrow  money, 
this  may  be  done  by  means  of  its  commercial  paper,  but  mere 
administration  and  taxing  powers  will  not  be  sufficient.7 
An  authority  to  purchase,  build  and  take  stock  in  internal 
improvements  implies  authority  to  give  a  negotiable  bond  in 
payment.8 

§  341.  Statutory  Requirements. — If,  however,  the  statute 
prescribes  a  particular  course  for  the  effecting  of  a  particular 

'Knapp  v.  Mayor,  &c,  of  Hoboken,  10  Vroom  394  (1877).  And  see  Town 
of  Backettstown  v.  Swackhamer,  8  lb  198  (1874);  Mayor  v.  Ray,  19  Wall. 
178  (1873).  But  in  New  Hampshire  the  rule  seems  to  be  different,  Andover 
i'.  I Irafton.  7  N.  H.  294  (1834)  ;  and  in  Mississippi,  City  of  Vicksburg  v.  Lom- 
bard, 51  Miss.  Ill  (1875). 

'County  of  Hardin  v.  McFarlin,  82  111.  138  (1876). 

•Lindsey  v.  Rottaken,  32  Ark.  619  (1S7S) ;  Ark.  R.  S.  cc.  24,  119. 

•Thomas  v.  City  of  Richmond,  12  Wall.  349  (1870) ;  Va.  Code  1860. 

'Lynde  v.  The  County.  16  Wall.  6  (1872) ;  Commonwealth,  ex  rel.  Whelen, 
».  City  of  Pittsburgh,  88  Penna.  St.  66  (1878) ;  De  Voss  v.  City  of  Richmond, 
18  Gratt.  338  (1868) ;  City  of  Galena  v.  Corwith,  48  111.  423  (1868). 

•Ketchum  v.  City  of  Buffalo.  14  N.  Y.  363  (1856). 

71  Daniel  394;  1  Edwards  \  48. 

61  Edwards  \  917;  Commonwealth,  ex  rel.  Hamilton,  v.  City  of  Pittsburgh, 
34  Penna  St.  496  (1859);  Commonwealth,  ex  rel.  Middleton,  v.  Allegheny 
County,  37  lb.  237  (I860);  Commonwealth,  ex  rel.  Reinbotb,  v.  Councils  of 
Pittsburgh,  41  76.278(1861):  Curtis  v.  Countv  of  Butler,  24  How.  435  (1860) ; 
Bushnell  v.  Beloit,  10  Wis.  195  (I860):  Seybert  v.  City  of  Pittsburg,  1  Wall. 
292(1863). 


486  CAPACITY MUNICIPAL    CORPORATIONS. 

purpose,  no  other  can  be  lawfully  pursued.1  Thus,  if  a  city 
comptroller's  warrant  has  a  particular  form  prescribed  by 
charter,  th-at  form  is  necessary  to  its  validity.2  So,  if  author- 
ity is  given  to  borrow  and  issue  a  note  for  payment,  a  bond 
for  that  purpose  is  unauthorized.3  Or  if  the  power  is  to 
issue  "county  orders,"  a  bill  or  note  will  not  be  included.4 
Or  if  the  statute  authorizes  a  ten-year  bond,  a  bond  for 
twenty  years  will  not  be  valid  ;5  although  such  authority  has 
been  held  sufficient  for  a  bond  payable  in  less  than  the 
authorized  time.6 

Provision  in  a  railroad  charter  that  "  it  shall  be  lawful  for 
the  agent  of  any  corporate  body  to  subscribe,  <fcc,"  gives  no 
authority  to  a  municipal  corporation  to  subscribe  for  stock 
and  issue  its  bonds  in  payment.7  But  a  statute  authorizing 
a  town  to  "  borrow  money  for  any  public  purpose,"  will  en- 
able it  to  borrow  money  in  aid  of  a  railroad  company  and 
issue  its  bonds  for  that  purpose.8 

A  power  to  pay  by  "  certificates  of  loan  "  is  equivalent  to 
a  power  to  give  coupon  bonds.9  So,  engraved  bonds  may  be 
issued  under  an  authority  for  printed  bonds.10 

§  342.  Popular  Consent  Required. — Municipal  corporations 
are  often  prohibited  by  the  legislature  from  issuing  bonds 
for  railroad  aid  or  other  like  purposes  without  consent  of  the 
taxpayers  first  obtained.  This  prohibition  does  not  amount 
to  an  authority  to  make  such  bonds  on  obtaining  such  con- 
sent, and,  without  express  legislative  power,  a  mere  vote  of 
the  people  gives  no  such  authority.11     Such  statutes  must  be 

'County  of  Hardin  v.  McFarlin,  82  111.  138  (1876). 

"Lucas  v.  City  of  San  Francisco.  7  Cal.  463  (1857). 

s Mayor,  &c,  of  Little  Rock  v.  State  Bank,  8  Ark.  227  (1847). 

4Goodnow  v.  Commissioners  of  Ramsey  County,  11  Minn.  31  (1865). 

6Woodruff  v.  Town  of  Okolona,  57  Miss.  806  (1880). 

6Gilchrist  v.  Little  Rock,  1  Dill.  261  (1871). 

7 Township  of  East  Oakland  v.  Skinner,  4  Otto  255  (1876). 

8 Rogers  v.  City  of  Burlington,  3  Wall.  654  (1865). 

9Amey  v.  Mayor,  &c,  of  Allegheny  City,  24  How.  364  (1860). 

10And  a  county  cannot  repudiate  such  bonds  after  recognizing  them  by 
paying  the  interest.  McKee  v.  Vernon  County,  3  Dill.  210  (1874). 

"Allen  v.  Louisiana,  13  Otto  80  (1880);  People  v.  Wayneville,  88  111.  469 
(1878). 


POPULAR    CONSENT    REQUIRED.  487 

strictly  construed.  Thus,  a  statutory  provision  that  a  muni- 
cipal corporation  "  may  "  obtain  such  consent  is  a  require- 
ment that  it  shall  do  so.1  If  the  statute  provide  that  a 
"strip"  of  the  county  through  which  a  railroad  may  pass, 
may  vote  to  take  stock  and  tax  themselves  for  such  road,  this 
will  not  authorize  the  county  to  create  a  debt  and  issue  its 
bonds  therefor.2 

And  where  such  act  of  the  legislature  falls  under  a  consti- 
tutional prohibition,  as  in  the  State  of  Missouri,  bonds  issued 
by  a  town  for  the  purchase  of  land  donated  by  it  to  a  rail- 
road company  are  within  the  prohibition  and  void.3  Such 
constitutional  prohibition  will  not,  however,  apply  to  bonds 
subsequently  issued  under  an  earlier  act.4  And  it  has  been 
held  not  to  reach  the  case  of  a  branch  road  built,  and  bond 
issued  therefor,  under  the  authority  of  a  charter  granted  pre- 
vious to  the  adoption  of  the  constitutional  provision.5  But 
it  will  reach  subsequent  amendments  of  such  earlier  statutes  ;6 
as  well  as  all  subsequently  issued  bonds,  where  there  is  no 
question  of  an  existing  vested  right.7  And  where  the  con- 
stitution prohibits  a  county  subscribing  for  railroad  stock  or 
loaning  its  credit  to  such  enterprises,  a  subscription  actually 
made  after  the  adoption  of  such  provision  is  unconstitutional 
and  void,  although  made  under  the  authority  of  an  earlier 
enabling  act.8  In  like  manner,  a  statute  relating  to  ex- 
isting county  warrants  and  requiring  them  to  be  publicly 
registered  before  a  certain  future  day  and  barring  all  claim 

M  Edwards  §  907;  Leavenworth,  &c,  R.  R.  Co.  v.  County  Ct.  of  Platte  Co., 
42  Mo.  171  (1868) ;  Steins  v.  Franklin  County,  48  Mo.  167  (1871). 

2Ogden  v.  County  of  Daviess,  12  Otto  634  (1880). 
Jarrolt  v.  Moberly,  13  Otto  580  (1880) ;  Const.  Mo.  1865  Art.  11  §  14. 

'County  of  Callaway  v.  Foster,  3  Otto  567  (1876);  County  of  Scotland  v. 
Thomas,  4  76.  6SS  (1876) ;  County  of  Henrv  v.  Nicolay,  5  lb.  619  (1877) ;  Cass 
v.  Dillon,  2  Ohio  St.  607  (1853) ;  State  of  Ohio,  ex  rel.  Smead,  v.  Trustees  of 
Union  Township,  8  lb.  394  (1858);  Commissioners  of  Knox  Co.  v.  Nichols, 
14  lb.  260  (1863) ;  State  of  Mo.,  ex  rel.  St.  Joseph,  &c,  R.  R.  Co.,  v.  County 
Ct.  of  Sullivan  Co.,  51  Mo.  522  (1873) ;  State  of  Minn.,  ex  rel.  Cen.  R.  R.  of 
Minn.,  v.  Town  of  Clark,  23  Minn.  422  (1877). 

5County  of  Henry  v.  Nicolay,  5  Otto  619  (1877). 

•Dodge  v.  County  of  Platte,  82  N.  Y.  218  (1880),  reversing  16  Hun  285. 

'Falconer  v.  Buffalo,  &c,  R.  R.  Co.,  69  N.  Y.  491  (1877). 

•Aspinwall  v.  Commissioners  of  the  County  of  Daviess,  22  How.  364  (1859). 


488  CAPACITY MUNICIPAL   CORPORATIONS. 

thereafter  under  them,  if  not  so  registered,  is  constitutional 
and  valid.1 

§  343.  Defenses — Unlawful  Issue. — It  may  be  laid  down 
as  a  general  principle  that  debts  unlawfully  contracted  by  a 
municipal  corporation  are  not  binding  upon  it.2  Thus,  county 
warrants  issued  without  legal  authority,  or  not  in  the  form 
prescribed  by  law,  are  not  binding  upon  the  county.3  So,  a 
municipal  bond  issued  without  authority  is  invalid,  although 
it  may  be  negotiable  in  form.4 

And  the  defense  of  original  want  of  authority  to  issue  the 
bond  is  available  against  all  holders.5  The  fact  that  the 
holder  is  a  purchaser  in  good  faith  and  for  value  before  the 
maturity  of  the  bond  does  not  preclude  the  town  from 
making  such  defense,  unless  the  acts  of  its  officers  or  agents 
are  by  statute  made  conclusive  upon  it.6  Thus,  the  holder 
of  a  draft  issued  by  a  town  in  excess  of  its  powers,  although 
purchasing  it  in  good  faith,  takes  it  with  notice  of  the  town 
charter  and  all  limitations  and  powers  contained  in  it.7 

It  has  been  held,  however,  that  where  the  legislative  au- 
thority is  to  be  exercised  on  certain  conditions  and  these  are 
not  recited  in  the  bond,  the  town  cannot  avail  itself  of  a 
failure  to  comply  with  them  as  a  defense  against  a  bona  fide 
holder  for  value.8  But  if  the  statute  provide  that  before  any 
municipal  bond  shall  be  valid  as  a  negotiable  security,  it 
shall  be  registered  and  the  certificate  of  such  registry  be  in- 
dorsed on  it,  the  bonds  without  such  indorsement  are  void  in 
the  hands  of  any  holder.9     Indeed,  if  there  is  no  authority 

1  Watson  v.  Doherty,  56  Miss.  628  (1879). 

2 Bradley  v.  Ballard,  55  111.  413  (1870). 

3 Supervisors  v.  Arrighi,  54  Miss.  668  (1S77);  Commissioners  of  Leaven- 
worth v.  Keller,  6  Kans.  510  (1870). 

*  Hancock  v.  Chicot  Co..  32  Ark.  57-")  (1877). 

5Chisholm  v.  City  of  Montgomery,  2  Woods  584  (1875) ;  Hancock  v.  Chicot 
County,  32  Ark.  575  (1877) ;  Lindsey  v.  Rottaken,  lb.  619  (1878). 

•Cagwin  v.  Town  of  Hancock,  84  N.  Y.  532  (1881),  reversing  22  Hun  201. 

'Halstead  v.  Mayor,  &c,  New  York,  5  Barb.  218  (1849) ;  affirmed,  3  N.  Y. 
430  (1S50). 

8American  Life  Ins.  Co.  v.  Town  of  Bruce.  U.  S  S.  C.  April  18S2,  4  Mori- 
Trans.  664;  Wood  v.  Allegheny  County,  3  Wall.  Jr.  267  (1859);  Danielly  v. 
Cahaniss,  52  Ga.  211  (1874). 

"Anthony  v.  County  of  Jasper,  11  Otto  693  (1879) ;  S.  C,  4  Dill.  136  (1876). 


DEFENSES.  489 

to  a  town  to  issue  its  bond  or  commercial  paper,  there  can  be 
no  bona  fide  holder  of  it  in  the  commercial  sense  of  the  term.1 
One  who  purchases  such  bond  in  good  faith  is  not  bound 
to  look  any  farther  than  to  see  that  there  is  legislative  author- 
ity for  its  issue,  and  that,  so  far  as  appears  by  official  cer- 
tificates, all  conditions  precedent  to  its  issue  have  been  per- 
formed.2 He  is  chargeable  with  knowledge  of  the  law 
authorizing  the  issue  of  the  bond,3  especially  if  this  appears 
on  the  face  of  the  instrument;4  and  also  with  knowledge  of 
the  construction  given  to  such  statute  by  the  courts.5  He  is 
also  chargeable  with  knowledge  of  all  public  records  affect- 
ing the  authority  to  issue  the  bond.6  So,  where  the  author- 
ity to  issue  bonds  in  aid  of  a  railroad,  is  given  to  counties 
through  which  the  road  runs,  the  holder  of  a  bond  issued 
under  such  authority  is  chargeable  with  knowledge  of  the 
location  of  the  road  and  that  it  did  not  run  through  the 
county  giving  the  bond.7  But  he  is  not  chargeable  with 
knowledge  of  the  fact  that  a  suit  is  pending  to  restrain  the 
issue  of  such  bonds.8     "A  party  will  not  be  charged  with 

'Town-ship  of  East  Oakland  v.  Skinner,  4  Otto  255  (1876) ;  Marsh  v.  Fulton 
County,  10  Wall.  676  (1870) ;  School  Directors  v.  Fogleman,76  111.  1S9  (1875) ; 
Cecil  v.  Board  of  Liquidation,  30  La.  An.  34  (1878). 

2  Bond  debt  cases,  12  So.  Car.  200  (1879) ;  Block  v.  Commissioners,  9  Otto 
686  (1878);  Mercer  County  v.  Hacket,  1  Wall.  83  (1863);  St.  Joseph  Town- 
ship v.  Rogers,  16  lb.  644  (1872) ;  S.  C.  &  St.  P.  R.  Co.  v.  Countv  of  Osceola, 
45  Iowa  168  (1876) ;  Grand  Chute  v.  Winegar,  15  Wall.  355  (1872) ;  Mever  v. 
City  of  Muscatine,  1  lb.  384  (1863);  Gelpcke  v.  City  of  Dubuque,  lb.  175 
(1863). 

"Town  of  South  Ottawa,  v.  Perkins,  4  Otto  260  (1876);  County  of  Bates  v. 
Winters,  7  lb.  83  (1S77) ;  Ogden  v.  County  of  Daviess,  12  lb.  631  (18S0); 
Williamson  v.  City  of  Keokuk,  41  Iowa  88  (1876);  State,  ex  rel.  Watkins,  v. 
Macon  County  Ct.,  68  Mo.  29  (1878). 

4McClure  v.  Township  of  Oxford,  4  Otto  429  (1876);  Commonwealth  v. 
Chesapeake,  &c,  Canal,  32  Md.  501  (1870) ;  Fisk  v.  City  of  Kenosha,  26  Wis. 
23  (1870);  Town  of  Middleport  v.  JEiw.i  Life  Ins.  Co,  S2  III.  562  (1876); 
Silliman  v.  Fredericksburg,  &o,  R.  R.  Co.,  27  Gratt.  119(1876);  Louisiana 
State  Bank  v.  Orleans  Nav.  Co.,  3  La.  An.  294  (1848) ;  Slifer  v.  Howell,  9  W. 
Va.  391  (1876). 

6  Common  wealth  v.  Chesapeake  Canal,  32  Md.  501  (1870). 

"Starin  v.  Town  of  Genoa,  23  X.  Y.  439  (1861) ;  Gould  v.  Town  of  Sterling, 
lb.  456  (1861);  Bissell  v.  City  of  Kankakee,  64  111.  249  (1872);  Veeder  v. 
Town  of  Lima,  1'.)  Wis.  280  (1865);  Clark  v.  City  of  Des  Moines,  19  Iowa 
199  (1865).     See,  too,  Backman  v.  Charlestown,  42  N.  II.  125  (I860). 

'State  of  Ohio  v.  Commissioners  of  Hancock  Co.,  11  Ohio  St.  183  (1S60). 

■Bailey  r  Town  of  Lansing,  13  Blatch.  424  ( 1876) :  Durant  v.  Iowa  County, 
1  Wooiw.  69  i  L864) :  County  of  Macon  u  Snores,  7  Oito  -272  (1877);  County  of 
Cass  v.  Gillett,  10  //-   585  I  1879);  County  of  Warren  v.  Marcy,  7  lb.  96  I  1877). 


490  CAPACITY MUNICIPAL   CORPORATIONS. 

constructive  notice  unless  the  circumstances  are  such  that 
the  court  can  say  that  it  was  his  duty  to  acquire  the  knowl- 
edge in  question,  and  that  his  failure  to  obtain  it  was  the 
result  of  culpable  negligence.  It  is  not  enough  that  he 
should,  from  want  of  prudent  caution,  have  neglected  to 
make  inquiries,  but  he  must  have  designedly  abstained 
from  such  inquiries  for  the  purpose  of  avoiding  knowledge. 
There  must  be  a  willful  blindness  and  not  mere  want  of 
caution."1 

§  344.  Irregular  Execution. — If  the  defense  is  merely  one 
of  irregularity  in  the  manner  of  executing  the  instrument, 
the  corporation  may  be  estopped  from  setting  up  such  defense 
against  a  holder  in  good  faith  and  for  value.2  This  is  so 
where  the  facts  in  question  have  been  already  determined  by 
the  common  council  and  the  bonds  have  been  issued  and  de- 
livered in  exchange  for  railroad  stock  and  have  come  into 
the  hands  of  a  bona  fide  holder.3  So,  where  the  subscription 
to  stock  was  authorized  to  be  made  to  one  railroad  company, 
but  the  railroad  was  transferred  and  the  subscription  made 
and  bonds  issued  to  another  company,  with  the  consent  of 
the  county,  which  afterward  paid  interest  on  the  bonds  for 
several  years.*  Where  a  statute  authorizes  the  issue  of  bonds 
m  aid  of  a  railroad  company,  provided  that  the  ordinance  for 
their  issue  specifying  the  time,  terms  and  conditions  of  the 
bonds  to  be  issued  shall  first  be  submitted  to  a  popular  vote, 
the  city  council  cannot  afterward  alter  the  time,  terms  or 
conditions  prescribed  in  the  ordinance  submitted.5  But  it 
will  be  presumed  in  favor  of  a  bona  fide  holder  that  the  bonds 

'Joynes,  J.,  in  De  Voss  v.  City  of  Richmond,  18  Gratt.  338  (1868).  In  this 
ci»se  the  bonds  in  question  were  issued  by  the  city  of  Richmond  for  other 
bonds  that  had  been  confiscated  by  the  Confederate  Government,  without 
notice  to  the  holders,  and  the  city  was  held  liable  on  the  new  bonds  to  a 
bona  fide  holder  for  value. 

2Steines  v.  Franklin  County,  48  Mo.  167  (1871) ;  Barrett  v.  County  Ct.  of 
Schuyler  Co.,  44  lb.  197  (1869);  Hannibal,  &c,  R.  R.  Co.  v.  Marion  Co.,  36 
76.  294  (1865);  State  of  Ohio  v.  Trustees  of  Goshen  Township,  14  Ohio  St, 
569  (1863);  Rogers  v.  Burlington,  3  Wall,  654  (1865). 

•Bissell  v.  City  of  Jeffersonville,  24  How.  299  (1S60). 

♦County  of  Ray  v.  Vansycle,  6  Otto  67o  (1877). 

"Hodgman  v.  Chicago,  &c,  R.  R.  Co.,  20  Minn.  4S  (1873). 


ESTOPPEL    BY    RECITALS.  491 

have  been  issued  under  the  circumstances  prescribed  by  the 
enabling  statute.1 

§  345.  Estoppel  by  Recitals. — As  to  all  matters  except  the 
legislative  authority  for  their  issue,  the  holder  may  rely  on 
the  recitals  contained  in  the  bonds.2  And  such  recital  in  the 
bond  will  be  available  by  way  of  estoppel  in  favor  of  the 
bona  fide  holder  of  a  coupon.3 

So,  the  official  certificate  on  a  bond  as  to  the  circumstances 
authorizing  its  issue  constitutes  an  estoppel  in  favor  of  a 
holder  for  value  without  notice.4  So,  where  a  county,  giving 
its  bonds  for  a  subscription  to  the  stock  of  a  railroad  com- 
pany, consents  to  an  extension  of  the  time  limited  for  the 
completion  of  the  road,  and  its  officers  within  such  extended 
period  declare  the  road  completed  to  their  satisfaction  and 
deliver  the  bonds  and  receive  the  stock,  the  county  cannot 
afterward  set  up  in  defense  to  the  bonds  that  the  road  was 
not  completed  within  the  time  specified.5  And  even  where 
the  consent  of  the  taxpayers  is  required,  the  recital  of  such 
consent  in  the  bonds  will  estop  the  corporation  from  deny- 
ing it.6 

Where  there  is  a  constitutional  limit  to  the  indebtedness 
of  cities,  an  act  authorizing  the  issue  of  bonds  without  any 
such  limitation  is  void,  and  so  are  bonds  issued  under  it  and 
disclosing  on  their  face  the  purpose  of  their  issue.7  And  a 
mere  recital  of  the  statutory  authority  will  constitute  no  es- 

'Gelpcke  v.  City  of  Dubuque,  1  Wall.  175  (1863). 

*Dodge  v.  County  of  Platte.  16  Hun  285  (1878) ;  Smith  v.  Countv  of  Clark. 
54  Mo.  58  (1873) ;  Moran  v.  Commissioners  of  Miami  Co.,  2  Black.  722  (1862). 

'Commissioners  of  Knox  Co.  v.  Aspinwall,  21  How.  539  (1858). 

*1  Edwards  g§  876,803;  Menasha  v.  Hazard,  12  Otto  81  (1880);  County 
of  Moultrie  v.  Rockingham  Ten-Cent  Savings  Bank.  2  lb.  631  (1875) ;  Orleans 
v.  Piatt,  9  lb.  676  (1878) ;  Harter  v.  Kernochan,  13  lb.  562  (1880) ;  Kenicott 
v.  Supervisors,  16  Wall.  452  (1872)  ;  Town  of  Coloma  v.  Eaves,  2  Otto  484 
(1875);  Marry  v.  Township  of  Oswego,  lb.  637  (1875). 

*  County  of  Randolph  v.  Post,  3  Otto  502  (1S76). 

•Scipio  v.  Wright,  11  Otto  665  (1879);  First  National  Bank  of  North 
Bennington  v.  Town  of  Dorset,  lt>  Blatch.  62  (1879) ;  Town  of  Springport  v. 
Teutonia  Savings  Bank,  84  N.  Y.  403  (1SS1\,  75  lb.  397  (1878);  Bond  Debt 
Cases,  12  So.  Car.  200  (1879);  Commissioners  of  Douglass  Co.  v.  Bolles,  4 
Otto  104  (1876) ;  Town  of  Coloma  v.  Eaves,  2  lb.  484  (1875). 

'Fisk  v.  City  of  Kenosha,  26  Wis.  23  (1870'). 


492  CAPACITY — MUNICIPAL    CORPORATIONS. 

toppel,  where  the  bonds  have  been  issued  in  disregard  of  the 
constitutional  provision.1 

But  the  recital,  that  the  conditions  precedent  to  the  issue 
of  bonds  have  been  performed,  will  constitute  an  estoppel  in 
favor  of  the  holder.2  And  a  misrecital  of  the  statute  author- 
izing the  issue  will  not  amount  to  a  matter  of  defense.3 

§  346.  Estoppel  by  Corporate  Acts. — If  the  bond  has  been 
ante-dated  in  order  to  evade  a  law  requiring  such  bonds  to 
be  registered,  and  the  corporation  has  received  the  proceeds 
of  the  bond,  it  will  be  liable  to  the  holder  for  the  amount 
received.4  And,  in  general,  receiving  the  proceeds  of  the 
bonds  will  amount  to  a  waiver  of  irregularities  in  their  issue.5 
And  so  will  the  levy  of  a  tax  for  them  and  payment  of  in- 
terest on  them  for  a  term  of  years;6  or  receiving  railroad 
stock  for  the  bonds  and  paying  interest  on  them.7  The  town 
will  not,  however,  be  estopped  from  defending,  on  the  ground 
of  original  want  of  authority,  either  by  levying  a  tax  for 
payment  of  the  bonds  or  by  paying  interest  on  them.8 

Where  the  election,  prescribed  as  a  means  of  obtaining  the 
consent  of  taxpayers,  has  been  ordered  by  the  board  of  super- 
visors instead  of  the  county  court  prescribed  by  the  statute, 
and  the  bonds  issued  have  been  subsequently  validated  by  stat- 
ute and  afterward  under  another  statute  exchanged  for  new 
bonds  authorized  by  a  popular  vote,  as  prescribed  by  statute, 
the  last  vote  will  amount  to  a  ratification  curing  all  original 

•Lippineott  v.  Town  of  Pan  a,  92  111.24  (1879) ;  Gaddis  v.  Richland  County, 
lb  119  (1879);  People,  ex  re!,.  Cairo,  &c,  R.  R.  Co.,  v.  Supervisors  of  Jack- 
son County,  lb.  441  (1879). 

Commissioners  of  Johnson  Co.  v.  January,  4  Otto  202  (1876) ;  Poore,  24 
Gratt.  200;  Dixon  Company  v.  Field,  111  U.  S.  83  ;  Anderson  County  v.  Real, 
5  Sup.  Ct.  Rep.  433  (U.  S.  S.  C.  1885). 

■Commissioners  of  Johnson  Co.  v.  January,  4  Otto  202  (1876). 

*  Louisiana  v.  Wood,  12  Otto  294  (1880) ;  Wood  v.  City  of  Louisiana,  5  Dill. 
122  (1878). 

6  Pendleton  County  v.  Amy,  13  Wall.  297  (1871). 

•Supervisors  v.  Schenck,  5  Wall.  784  (1866). 

'Commissioners  of  Johnson  County  v.  January,  4  Otto  202  (1876). 

"Weismer  v.  Village  of  Douglass,  4  Hun  201  (1875),  affirmed  64  N.  Y.  91 
(1876) ;  Marshall  County  v.  Cook,  38  III.  44  (1865).  And  to  the  same  effect, 
as  to  the  distinction  between  want  of  power  and  irregularity  in  execution 
of  it,  as  affecting  the  question  of  estoppel  or  ratification,  see,  also,  State  of 
Ohio  v.  Trustees  of  Goshen  Township,  14  Ohio  St.  569  (1863). 


STATUTES.  493 

irregularity  in  the  bonds.1  It  is  sufficient  if  there  is  reason- 
able certainty  in  the  manner  of  voting  on  such  bonds,  the 
other  requirements  of  the  statute  being  complied  with.2  And 
the  regularity  of  a  bond  issued  under  an  old  statute  will  be 
presumed  after  twenty-eight  years.3 

§  347.  Statutes — Proof  of  Compliance — Ratification. — So, 
if  any  proof  is  made  as  to  obtaining  the  consent  of  taxpay- 
ers, it  will  be  presumed  to  be  sufficient;4  and  if  made  ac- 
cording to  the  requirements  of  the  statute,  it  will  be  conclu- 
sive in  favor  of  a  bona  fide  holder.5  The  judgment  exercised 
by  the  official  executing  the  bond  is  in  such  case  conclusive 
upon  the  corpo ration.6 

And  in  general  the  legislature  may  ratify  any  contract  of 
a  municipal  corporation,  which  is  irregular  or  ultra  vires,  if 
it  could  originally  have  authorized  it.7  Thus,  where  the 
statute  originally  authorized  an  election  for  the  issue  of  bonds 
with  interest  payable  annually  and  the  bonds  voted  on  and 
issued  bore  interest  payable  semi-annually,  this  defect  was 
cured  in  the  hands  of  a  bona  fide  holder  by  subsequent  legis- 
lation.8 But  the  legislature  cannot,  it  has  been  held,  ratify 
bonds  which  are  void  for  want  of  the  constitutional  limita- 
tion of  the  amount  of  indebtedness  in  the  authorizing  acts;9 
or  for  want  of  the  consent  of  the  taxpayers  to  the  bonds 
that  were  issued,  as  required  by  law.10 

'County  of  Jasper  v.  Ballou,  13  Otto  745  (1880). 

'Ranney  v.  Baeder,  50  Mo.  600  (1872). 

3 Hamlin  v.  Board  of  Liquidators,  30  La.  An.  443  (1878). 

4 Van  Hostrup  v.  Madison  City,  1  Wall.  291  (1863). 

5Howland  v.  Eldredge,  43  N.  Y.  457  (1871). 

"Bissell  v.  City  of  Jeffersonville,  24  How.  287  (1-860) ;  1  Dillon  Mun.  Corp. 
\  418;  Commissioners  of  Douglas  Co.  v.  Bolles.  4  Otto  104  (1876);  Town  of 
Coloma  v.  Eaves,  2  lb.  484  (1875);  Town  of  Venice  v.  Murdoek,  lb.  494; 
City  of  Vicksburg  v.  Lombard.  51  Miss.  Ill  (1875). 

71  Edwards  \  914;  Thompson  v.  Perrine,  13  Otto  806(1880);  Town  of 
Queensburv  v.  Culver,  19  Wall,  83  (1873) ;  Town  of  Duanesbursrh  v.  Jenkins, 
57  N.  Y.  177  (1874) ;  People,  ex  rel.  Albany,  Ac,  R.  R.  Co.,  v.  Mitchell,  35  lb. 
551  (1866);  Williams  v.  Town  of  Dnanesburgh,  GG  lb.  129  (1876).  See,  too, 
Alexander  v.  Commissioners,  70  N.  C.  208. 

"Cutler  v.  Board  of  Supervisors,  56  Miss.  115  (1878). 

9Fisk  v.  City  of  Kenosha,  26  Wis.  23  (1870). 

10Horton  v.  Town  of  Thompson,  71  N.  Y.  513  (1877),  reversing  7  Hun  452. 
And  see  People,  ex  rel.  Dunkirk,  &c,  R.  R.  Co.,  v.  Batchellor,  53  N.  Y.  128 
(1873). 


494  CAPACITY GOVERNMENTS. 


III.  GOVERNMENTS. 

348.  Governments  as  Parties. 

349.  Bills  of  Credit. 

350.  Authority  of  Public  Officers. 

351.  Actions  by  and  against  Public  Agents. 

§  348.  Governments  as  Parties. — There  is  nothing  in  the 
nature  of  commercial  paper  to  render  its  execution  by  a 
State  or  government  impossible,  although  instruments  issued 
by  governments  as  security  for  public  debts  generally  take 
the  form  of  bonds,  either  with  or  without  coupons.  Govern- 
ment bonds,  payable  to  bearer  or  otherwise  negotiable  in 
form,  are  negotiable  instruments  and  may  be  transferred  as 
such.1  If,  however,  their  negotiability  is  restricted,  e.  g.  by  a 
special  indorsement,  their  transfer  is  from  that  time  subject 
to  defense,  and  if  stolen  after  such  indorsement,  the  bond 
may  be  recovered  in  trover  even  from  a  bona  fide  purchaser 
for  value.2  In  order  to  constitute  a  valid  security,  any  bond 
or  negotiable  obligation  of  the  State  must  be  issued  under 
the  authority  of  the  constitutional  and  statute  law.3 

§  349.  Bills  of  Credit. — The  constitution  of  the  United 
States  provides  that  "  no  State  shall  emit  bills  of  credit."4 
And  the  original  draft  contained  a  clause,  which  was  stricken 
out  in  convention,  giving  to  Congress  power  "to  emit  bills 
on  the  credit  of  the  United  States."5  Bills  of  credit  have 
been  variously  defined.  The  evil  aimed  at  was  the  issue  of 
paper  money,  and  the  phrase  was,  without  doubt,  intended 

JSo  held  as  to  U.  S.  treasury  notes  in  Vermilye  v.  Adams  Exp.  Co.,  21 
Wall.  138  (1874) ;  Dinsmore  v.  Duncan,  57  N.  Y.  573  (1877) ;  Seybel  v.  Nat. 
Currency  Bank,  54  lb.  288  (1873);  Frazer  v.  D'Invilliers,  2  Penna.  St.  200 
(1845) ;  Murray  v.  Lardner,  2  Wall.  118.  And  as  to  State  bonds  in  Delafield 
v.  State  of  Illinois,  2  Hill  177  (1841);  Finnegan  v.  Lee,  18  How.  Pr.  186; 
Railroad  Companies  v.  Schutte,  13  Otto  118  (1830).  And  as  to  detached  gov- 
ernment coupons,  Spooner  v.  Holmes,  102  Mass.  503  (1869);  and  as  to  in- 
dorsement by  a  State  of  a  negotiable  railroad  bond,  State  v.  Cobb,  64  Ala. 
128  (1879). 

2 Myers  v.  Friend,  1  Rand.  12  (1821). 

8 Bond  Debt  Cases,  12  So.  Car.  200  (1879). 

4  Art.  1  §  10. 

5 2  Curtis  Hist,  U.  S.  Const.  328.  This  clause,  if  adopted,  would  have 
expressly  authorized  what  are  now  known  as  the  "  Greenbacks." 


AUTHORITY    OF    PUBLIC    OFFICERS.  495 

to  designate  such  money.1  Under  this  section  of  the  consti- 
tution State  certificates  issued  in  small  denominations  were 
held  to  be  void  as  bills  of  credit,  although  they  were  not  a 
legal  tender  and  were  made  payable  with  interest  and  receiv- 
able for  taxes  and  debts  due  to  the  State.2  But  State  bank 
bills  have  been  held  not  to  be  bills  of  credit.3  So,  too,  inter- 
est coupons  attached  to  State  bonds  are  not  bills  of  credit, 
although  negotiable  in  form  and  issued  on  the  credit  of  the 
State  and  receivable  in  payment  of  taxes."4 

§  350.  Authority  of  Public  Officers. — The  government  of 

'Thus,  Chief  Justice  Marshall  says,  in  Craig  v.  State  of  Missouri,  4  Pet. 
410,  432  (1830):  "To  emit  bills  of  credit  conveys  to  the  mind  the  idea 
of  issuing  paper  intended  to  circulate  through  the  community  as  money, 
which  paper  is  redeemable  at  a  future  day.  *  *  *  Bills  of  credit 
signify  a  paper  medium  intended  to  circulate  between  individuals  and  be- 
tween government  and  individuals  for  the  ordinary  purpose  of  society." 
In  the  same  case,  McLean,  J.,  says,  p.  454:  "To  constitute  a  bill  of  credit 
within  the  meaning  of  the  constitution  it  must  be  issued  by  a  State  and  itb 
circulation  as  money  enforced  by  statutory  provisions  It  must  contain  a 
promise  of  payment  by  the  State  generally  when  no  fund  has  been  appro 
priated  to  enable  the  holder  to  convert  it  into  money.  It  must  be  circulated 
on  the  credit  of  the  State,  not  that  it  would  be  paid  on  presentation  but  that 
the  State  at  some  future  period,  on  a  time  fixed  or  resting  in  its  own  discre- 
tion, would  provide  for  the  payment."  But  Thompson,  J.,  says:  "  If  being 
used  as  a  circulating  medium  or  substitute  for  money  makes  these  certifi- 
cates bills  of  credit,  bank  notes  are  more  emphatically  such.  *  *  *  And 
if  they  (the  States)  can  issue  bank  notes  because  they  are  bills  of  credit, 
they  cannot  authorize  others  to  do  it."  And  in  Briscoe  v.  Bank  of  Com- 
monwealth, 11  Pet.  257,  314  (1837),  McLean,  J.  defines  a  bill  of  credit  to  be 
a  paper  issued  by  the  sovereign  power  containing  a  pledge  of  its  faith  and 
designed  to  circulate  as  money;  and  so,  obiter,  Woodruff  v.  Trapnall,  10 
How.  205  (1840).  In  Craig  v.  State  of  Missouri,  supra,  Thompson,  J.,  defines 
a  hill  of  credit  to  be  "a  hill  drawn  and  resting  merely  upon  the  credit  of 
the  drawer  as  contradistinguished  from  a  fund  constituted  or  pledged  for 
the  payment  of  the  bill,"  p.  447. 

'Craig  v.  State  of  .Missouri,  supra,  Thompson,  McLean  and  Johnson,  JJ., 
dissenting,  the  latter  on  the  ground  that  the  certificate  drew  interest  and 
was  received  for  taxes.  And  in  the  City  Nat.  Bank  v.  Mahan,  21  La.  An. 
753  (1869),  Louisiana  State  certificates  issued  in  small  denominations  pay- 
able to  hearer  "in  the  similitude  of  ordinary  bank  hills  and  actually  circu- 
lated as  money"  (Ludeling,  J.,)  under  a  statutory  authority  "to  issue  on 
behalf  of  the  Slate  from  time  to  time  for  the  purpose  of  paying  the  current 
expenses  of  the  State  *  *  *  a  sum  not  exceeding  two  million  dollars 
in  certificates  of  indebtedness,"  were  held  to  be  unconstitutional  bills  of 
credit. 

3Briscoe  v.  Bank  of  the  Commonwealth,  11  Pet.  257  (1837) ;  Darrington  v. 
Bank  of  Alabama,  13  How.  12(1851);  notwithstanding  the  suggestion  of 

Thompson,  J.,  contra,  in  Craig  v.  State  of  Missouri,  4  Pet.  44'.);  and  notwith- 
standing that  the  State  held  all  the  stock  and  pledged  its  faith  for  the  re- 
demption of  the  notes,  Darrington  v.  Bank  of  Alabama,  supra. 

♦Poindexter  v.  Greenhow,  5  S.  C.  Rep.  903;  20  Cent.  L.  J.  417  (U.  S.  S.  C, 
April  20,  1885). 


496  CAPACITY GOVERNMENTS. 

the  United  States,  it  has  been  held,  may,  by  its  authorized- 
officers,  become  a  party  to  negotiable  paper,  with  all  the 
rights  and  liabilities  of  an  individual  party  except  the  liabil- 
ity to  be  sued.1  It  is  doubtful,  however,  whether  there  is 
any  officer  so  authorized  to  bind  the  government  by  his 
drawing  or  accepting  of  a  bill  of  exchange,  or  his  execution 
of  a  promissory  note  in  the  name  of  the  government.  Thus, 
it  has  been  held  that  the  acceptance  of  a  bill  of  exchange, 
drawn  on  the  secretary  of  war  for  supplies  needed  by,  and 
furnished  to,  the  war  department,  and  accepted  by  him  in 
the  words  "John  B.  Floyd,  Secretary  of  War,"  will  not  ren- 
der the  government  liable  as  acceptor.2 

The  authority  of  government  agents  is  matter  of  public 
notoriety  and  must  be  strictly  construed.  An  agent,  for  in- 
stance, who  is  authorized  to  borrow  money  for  a  State  by  a 
sale  of  its  bonds,  cannot,  without  express  authority,  make 
such  sale  on  credit.3 

Where  the  government  has  become  the  holder  of  a  bill  of 
exchange,  the  indorsers  will  be  discharged  by  negligence  on 
its  part  in  the  same  manner  as  by  negligence  on  the  part  of 
an  individual  holder.4  But,  as  has  been  said,  the  State  can- 
not be  sued  upon  its  obligations,  except  where  provision  is 
made  therefor  by  the  constitution  of  the  United  States.  It 
cannot  be  sued  upon  a  warrant  given  by  the  State  auditor.6 
Nor  can  it  be  compelled,  by  bill  in  equity,  to  suffer  the 
allowance  of  a  set-off  against  a  claim  due  to  it,6     On  the 

1  United  States  v.  Bank  of  the  Metropolis,  15  Pet.  377  (1841).  And  if  the 
govern ment  pays  a  check  on  a  forged  indorsement  and  fails  to  give  reason- 
able notice  on  discovery  of  the  fraud,  it  will  lose  its  right  of  action  for 
the  recovery  of  Ihe  money,  like  a  private  holder,  United  States  v.  Central 
Nat.  Bank,  6  Fed.  Rep.  134  (1881).  So,  a  State  may  become  liable  as  an 
indorser  of  negotiable  railroad  bonds,  State  v.  Cobb,  64  Ala.  127  (1879).  And 
a  suit  against  the  State  tax  collector  for  an  unlawful  tax  levy  under  the  Vir- 
ginia "Coupon  Killer"  Act,  is  not  a  suit  against  the  State,  Poindexter  v. 
Greenhow,  20  Cent.  L.  J.  417 ;  5  S.  C.  Rep.  903  (U.  S.  S.  C,  1885).  But  see, 
dissenting,  opinion  of  Bradley,  J.,  5  S.  C.  Rep.  962. 

2  Floyd  Acceptances,  7  Wall.  666  (1868) ;  Nelson,  Grier  and  ClifTord,  JJ., 
dissenting. 

sState  of  Illinois  v.  Delafiekl,  8  Paige  527  (1840). 

♦United  States  v.  Barker,  12  Wheat.  559  (1827). 

"Green  v.  State,  53  Miss.  148  (1876) ;  State  v.  Dubuclet,  23  La.  An.  267 

•Raymond  v.  State,  54  Miss.  562  (1877). 


ACTIONS    BY    AND    AGAINST    PUBLIC    OFFICERS.  497 

other  hand,  if  it  has  issued  its  obligations  with  a  provision 
that  they  should  be  received  in  payment  of  debts  due  the 
State,  it  cannot,  without  violation  of  the  United  States  con- 
stitution, repeal  such  provision  so  as  V)  affect  obligations  so 
issued  and  then  in  circulation.1 

§  351.  Actions — By  and  Against  Public  Agents. — If  a  bill 
or  note  is  made  to  an  agent  of  the  United  States  for  money 
due  to  the  government,  it  may  bring  suit  upon  it  in  its  own 
name  without  indorsement.2  On  the  other  hand,  a  tax  col- 
lector, taking  a  note  in  his  own  name  for  taxes  due  to  the 
State,  cannot  sue  on  it  in  such  name.3  So,  a  land  agent  of 
the  government,  taking  a  note  in  his  official  capacity  for 
public  timber  sold  by  him,  cannot  sue  upon  it.* 

But  while,  in  general,  an  agent  cannot  render  his  govern- 
ment liable  on  a  note  or  bill  of  exchange  for  want  of  author- 
ity, he  will  not,  on  the  other  hand,  make  himself  individu- 
ally liable  on  such  paper,  if  it  appear  to  be  executed  in  his 
official  capacity  only.5  Thus,  an  Indian  agent  will  not 
oecome  individually  liable  on  an  official  contract  for  trans- 
portation.6 So,  the  indorsement  of  a  note  by  "A.  B.,  Sheriff," 
is  notice  of  his  official  capacity  to  all  takers  and  will  not 
render  him  personally  liable.7 

1  Woodruff  v.  Trapnall,  10  How.  190  (1850);  Poindexter  v.  Greenhow, 
5  S.  C.  Rep.  903  (U.  S.  S.  C.  1885). 

2Dujran  v.  United  States,  3  Wheat.  172  (1818);  United  States  v.  Boice,  2 
McLean  352  (1841). 

3  Dickson  v.  Gamble,  16  Fla.  687  (1878). 

4State  v.  Boies,  11  Me.  474  (1834) ;  even  though  the  note  be  non-negotiable, 
Irish  v.  Webster,  5  Me.  171  (1827). 

5Baleombe  v.  Northup,  9  Minn.  172  (1863).  So  held,  also,  of  a  bill  drawn 
on  the  French  Government  by  the  French  Consul-General,  Jones  v.  LeTombe, 
3  Dall.  384  (1798). 

•Parks  v.  Ross,  11  How.  362  (1850). 

'Renshaw  v.  Wills,  38  Mo.  201  (1866). 

2g 


49S  CAPACITY PRINCIPAL    AND    AGENT. 


CHAPTER  XL 

CAPACITY— PRINCIPAL  AND  AGENT. 

1.  Liability  of  Principal. 
II.  Liability  of  Agent. 
III.  Defenses. 


I.    LIABILITY    OF    PRINCIPAL. 

352.  General  Principles — Parol  Appointment. 
853.  Parol  Appointment. 

354.  Joinder  of  Principals. 

355.  Agents — Sub-agents. 

356.  Ex-press  Authority. 

357.  Strictly  Construed. 

358.  Implication  from  Other  Express  Powers, 

359.  Construction  of  Express  Powers. 
361.  Accommodation  and  Pledge— Not  Included  in  General  Powers. 


362. 

Authority  Implied  from  Declarations  and  Conduct. 

363. 

from  Recognition  of  Similar  Acts. 

364. 

by  Necessary  Implication. 

365. 

from  Relation  of  Parties. 

366. 

from  Official  Employment. 

367. 

for  Corporations. 

368. 

from  Official  Character — President. 

370. 

Cashier. 

371. 

Teller  —  Secretary  - 
urer. 

372. 

Municipal  Officers 

373. 

from  Blanks. 

374. 

Rl 

tification- 

-General  Principles. 

375. 

What  Acts  Amount  to. 

376. 

by  Acquiescence. 

377. 

T( 

rmination  of 'Agency. 

§  352.  General  Principles. — Questions  of  authority  to  exe- 
cute commercial  paper  are  similar  to  questions  of  the  capacity 
of  a  maker  or  indorser.  Such  questions  occur  chiefly  where 
instruments  of  this  character  are  executed  by  an  agent  or 
by  a  partner  for  his  firm.  The  proper  form  and  manner  of 
execution  of  such  instruments  has  been  already  considered 
in  an  earlier  part  of  this  work.  It  is  not  necessary  that  an 
agent  should  be  capable  of  contracting  in  his  own  right. 
Thus,  an  infant,  a  married  woman,  or  an  alien  may  be  com- 
petent to  act  as  an  agent.1     So,  in  times  when  a  slave  could 

1Byles32;  Ct.ittySG;  Co.  L'tL52a;   1  Dnniel26C;   1  Parsons  91. 


PAROL    APPOINTMENT.  499 

not  make  a  contract  for  himself,  lie  could  be  the  agent  of 
another.1  An  agent  must,  however,  have  sufficient  intelli- 
gence to  know  what  he  is  about.  An  idiot  or  insane  person 
cannot,  therefore,  be  an  agent.  Many  States  provide  by 
statute  for  the  execution  of  bills  and  notes  by  an  agent." 

§  353.  Parol  Appointment. — For  the  purpose  of  executing 
such  an  instrument  it  is  not  necessary  that  the  agent's 
authority  should  be  given  in  any  particular  form.  His  ap- 
pointment may  be  a  verbal  one.3  And  even  the  agent  of  a 
corporation  may  be  appointed  in  this  manner,4  and  may 
under  parol  authority  make  bills  and  notes  which  will  be 
binding  upon  it.6 

A  verbal  authority  is  not,  however,  sufficient  for  the  making 
of  a  sealed  note,  except  where  all  distinction  between  sealed 
contracts  and  others  has  been  abolished.6  But  where  verbal 
authority  has  been  given  to  an  agent  to  make  purchases  on 

•Governor  v.  Daily,  14  Ala.  469  (1848) ;  Bryant  v.  Sheely,  5  Dana  530  (1837). 

2  In  Idaho  express  provision  is  made  for  notes  executed  by  an  agent  (Rev. 
L.  1.875  p.  652  |  2). 

So,  in  Michigan  (1  Comp.  L.  1871  p.  515  §  2). 

So,  in  Nevada  (1  Comp.  L.  1873  e.  5  \  10). 

So,  in  New  Jersey  (1795  Pat.  Rev.  p.  342  g  4;  1874  Rev.  p.  897  \  1). 

So,  in  New  York  (2  R.  S.  ed.  1875  p.  1160  |2;1H.S.  1801  p.  151). 

So,  in  Oregon  (1872  G.  L.  p.  718  c.  48  g  2). 

In  South  Carolina  a  note  executed  for  the  maker  by  an  agent  and  nego- 
tiated by  the  agent  within  nine  months  after  his  principal's  death  is  bind- 
ing mi  the  principal's  estate  in  the  hands  of  a  bona  fide  holder  (1873  R.  S. 
p.  319  I  9). 

8Byles32;  Chitty36;  I  Daniel  262;  1  Parsons  100  ;  Davison  v.  Robertson 
8  Dowl.  229;  Porthouse  v.  Parker,  1  Campb.  82;  Harrison  v.  Jackson,  7  T.  R 
209;  Rex  v.  Bigg,  3  P.  Wins.  432;  Trundv  v.  Farrar,  32  Me.  225  (1850) 
Forsyth  v.  Day,  46  lb.  176  (1858);  Turnbull  v.  Trout,  1  Hall  336  (1828) 
Handyside  v.  Cameron,  21  III.  588(1859);  Humphreys  v.  Wilson,  44  Miss 
370).  In  Handyside  v.  Cameron,  supra,  the  agent  signed  the  priu 
cipal's  name  at  his  request  in  his  presence. 

'Bank  of  Columbia  v.  Patterson,  7  Cranch  305;  Fleckner  v.  Bank  of  U.  S., 
8  Wheat.  338, 357;  Bank  of  Washington  v.  Peirson,  2  Cranch  C.C.685  (1826); 
Right  Worthy,  &c,  Odd  Fellows  v.  First  National  Bank,  42  Mich.  461  (1880). 
Or  he  may  he  appointed  by  a  resolution  of  the  directors  not  reduced  to 
writing  and  provahle  by  parol,  Preston  v.  Missouri,  &c,  Lead  Co.,  51  Mo. 
48  (1872). 

5Chitty  36;  Co.  Litt.  946;  1  Salk.  191 ;  1  Edwards  \  62;  Rex  v.  Bigg.  3  P. 
Wins.  432;  Bank  of  Columbia  v.  Patterson,  7  Cranch  305  (1813);  Union 
Bank  v.  Ridgely,  1  Harr.  &  G  324  (1827).  And  in  general  neither  corporate 
seal  nor  resolution  of  directors  is  necessary  to  the  validity  of  a  corporation 
contract.  Hoag  v.  Lamont,  60  N.  Y.  101  (1875). 

•Delius  v  Cawthorn,  2  Dew  90  (1829). 


500  CAPACITY PRINCIPAL    AND    AGENT. 

credit  and  he  has  given  a  sealed  note  in  payment,  his  prin- 
cipal might  be  liable  for  the  consideration,  though  not  for  the 
note.1  And  in  Tennessee  it  has  been  held  that  a  general 
parol  authority  to  give  and  transfer  notes  will  render  the  prin- 
cipal liable  on  an  assignment  of  a  negotiable  instrument,, 
although  made  under  seal.2 

It  is  evident  that  an  indorsement  by  an  agent  in  his  prin- 
cipal's name  and.  presence,  and  by  his  consent,  is  sufficient 
to  bind  the  principal.3  So,  where  an  indorsement  is  made 
by  one  of  two  payees  who  are  not  partners,  in  the  name  of 
both,  with  the  consent  of  the  other,  it  will  be  sufficient  to 
bind  both,  although  authorized  only  by  parol.4  But  where 
there  is  express  authority  "  to  draw  checks,  indorse  notes,, 
and  generally  to  do  all  and  every  act  and  deed  towards  the 
execution  "  of  the  principal's  business  at  a  certain  bank,  the 
principal  cannot  limit  his  liability,  so  as  to  exclude  any  in- 
dorsement negotiable  at  such  bank  within  the  language  of 
the  power,  by  showing  that  the  power  had  been  declared 
verbally  by  him  to  relate  only  to  the  renewal  of  certain 
accommodation  paper  in  a  particular  transaction.6 

§  354.  Joinder  of  Principals. — Where,  however,  power  to> 
execute  such  paper  "  for  us  "  is  given  by  several,  it  extends 
only  to  paper  executed  for  them  jointly.6  But  one  of  several 
partners  may  authorize  a  clerk  of  the  firm  to  accept  bills  or 
make  or  indorse  notes  in  its  name.7  If,  however,  the  author- 
ity is  given  by  one  to  make  notes  or  bills  for  him,  it  will  not 
include  bills  or  notes  made  for  his  firm.8 

'Ruffin  v.  Mebane,  6  Ired.  Eq.  507  (1850). 

2 Bailey  v.  Rawley,  1  Swan  295  (1851). 

3  Woodbury  v.  Woodbury,  47  N.  H.  11  (1866);  Morse  v.  Green,  13/6.  32 
(1842) ;  Haven  v.  Hobbs,  1  Vt.  238  (1828) ;  Handyside  v.  Cameron,  21  111. 
588  (1859). 

*  Cooper  v.  Bailey,  52  Me.  230  (1863). 

5 Mann  v.  King,  6  Munf.  428  (1819). 

'And  successive  indorsement  of  all  the  principals'  names  is  not  a  proper 
execution  of  a  power  to  indorse  for  them  jointly,  Bank  of  the  United  States 
v.  Beirne,  1  Gratt.  234,  539  (1844). 

7Tiller  v.  Whitehead.  1  Dall.  269  (1788). 

•Attwood  v.  Munnings,  7  B.  &  C.278;  S.  C,  1  M.  &  Ry.  66. 


JOINDER    OF    AGENTS.  501 

Nor  will  a  power  to  make  a  bill  of  exchange  for  the  prin- 
cipal include  power  to  give  a  joint  bill  in  the  name  of  the 
principal  and  the  agent.1  So,  if  power  is  given  to  an  agent 
to  sign  a  note,  the  principal  saying  that  he  "  did  not  wish  to 
go  out  of  the  family  for  security,"  the  agent  cannot  execute 
a  note  for  the  principal  with  some  other  person  as  surety.2 
It  has  been  held,  however,  in  Ohio  that  power  to  an  agent  to 
execute  a  note  for  the  principal  will  cover  the  case  of  a  note 
executed  in  his  name  jointly  with  other  parties  interested.3 
But  an  authority  given  to  a  wife  to  indorse  a  note  for  her 
son  in  the  husband's  name  has  been  held  not  to  cover  the 
case  of  a  joint  note  executed  by  her  in  his  name  as  a  joint 
maker  with  another  person.4 

§  355.  Joinder  of  Agents — Sub-agents.  —  Again,  if  the 
resolution  of  a  board  of  directors  authorizes  four  of  its  number 
to  execute  an  instrument  for  the  corporation,  and  the  paper  is 
executed  by  only  three,  the  company  will  not  be  bound.5 
So,  one  of  several  official  liquidators,  appointed  under  the 
statute  for  winding  up  a  corporation,  cannot,  by  his  single 
acceptance,  bind  either  the  company  or  his  co-liquidators.6 
And,  in  general,  power  conferred  on  several  jointly  must  be 
executed  by  all.7  So,  if  a  company,  by  its  directors,  author- 
izes the  president  and  cashier  to  execute  instruments  for  it, 
this  will  uot  render  it  liable  on  a  draft  executed  by  the  presi- 
dent alone.8 

It  is  also  true  that  an  agent  cannot  delegate  his  authority 
so  as  to  render  his  principal  liable  upon  a  bill  or  note  given 

'Stainback  v.  Read,  11  Gratt.  281  (1854) ;  Bryan  v.  Berry,  6  Cal.  394  (1856). 

2 First  National  Bank  v.  Gay,  63  Mo.  33  (1876). 

3Layet  v.  Gano,  17  Ohio  466  (1848). 

4Cuyler  v.  Menifield,  5  Hun  559  (1875) ;  Mechanics'  Bank  v.  Schaumburg, 
38  Mo.  228  (1866). 

bDucarry  v.  Gill,  4  C.  &  P.  121  ;  S.  0.,  M.  &  M.  450. 

Hn  re  London,  &c  ,  Bank,  L.  R.  5  Ch.  567  (1870). 

'Story  on  Atrency  ?  42;  Union  Bank  v.  Beirne,  1  Gratt.  226  (1844).  And 
-see  Rollins  v.  Phelps,  5  Minn.  463  (1861).  And  a  joint  power  to  two  persons 
cannot  be  executed  by  the  survivor,  Hartford  F.  I.  Co.  v.  Wilcox,  57  111.  180 
(1870). 

BRidgway  v.  Fanners  Bank,  12  Serg.  &  R.  264(1824).  But  if  both  the 
officers  empowered  agree,  it  seems  that  one  may  execute  the  paper,  lb.; 
Fleckner  v.  United  .States  Bank,  8  Wheat.  362. 


502  CAPACITY PRINCIPAL    AND    AGENT. 

by  his  sub-agent.1  He  may,  however,  delegate  to  another 
the  mere  manual  act  of  signing  the  paper  in  his  presence.4 
Thus,  where  a  general  agent  has  authority  to  accept  a  bill,, 
his  book-keeper  may  sign  the  acceptance  by  his  direction  so 
as  to  bind  the  principal.3  In  like  manner,  where  A.  author- 
izes B.  to  borrow  money  for  him  and  give  his  note  for  it,  and 
B.  borrows  the  money,  and  D.,  at  his  request  and  in  his 
presence,  signs  the  note  "A.  by  D.,"  this  will  bind  A.  as  his 
note.4 

§  356.  Express  Authority. — Where  the  power  of  the  agent 
is  a  limited  one,  the  principal  will  not  be  liable  beyond  the 
limits  he  has  assigned,  so  far  as  regards  original  parties  to 
the  transaction  and  others  with  notice.5  So,  where  an  agent, 
authorized  to  draw  a  check  for  his  principal,  has  overdrawn 
his  account  by  collusion  with  the  book-keeper  of  the  bank, 
the  principal  will  not  be  liable  to  the  bank  for  such  checks 
drawn  in  excess  of  his  authority.6  But  where  the  authority 
was  a  general  one  in  a  letter  authorizing  the  agent  to  draw 
on  his  principal  to  the  amount  of  £10,000,  and  the  power 
had  been  exhausted  by  drafts  to  this  extent,  and  a  further 
amount  was  afterwards  obtained  by  the  agent  on  a  similar 
draft  from  one  who  neither  knew  of  the  letter  of  authority 
nor  of  the  fact  that  it  had  been  exhausted,  recovery  on  such 
subsequent  bill  was  allowed  against  the  principal,  the  money 
obtained  on  it  having  been  applied  to  his  use.7 

§  357.  Express  Authority  Strictly  Construed. — As  a  rule, 
special  authority  to  accept  or  indorse  commercial  paper  is  to 

ll  Daniel  263;  1  Parsons  105;  Combe's  Case,  9  Coke  75;  PalKser  v.  Ord, 
Bunb.  166;  Emerson  v.  Providence  Hat  Manuf.  Co.,  12  Mass.  237  (1815); 
Brewster  v.  Hobart,  15  Pick.  302  (1834). 

2 Lord  v.  Hall,  9  L.  J.  C.  P.  147 ;  S.  C,  8  C.  B.  627;  Ex  parte  Sutton,  2  Cox 
84;  Coles  v.  Trecotbick,  9  Ves.  234.  And  this  is  true  of  an  official  indorse- 
ment of  a  return  on  a  writ,  Ellis  v.  Francis,  9  Ga.  325  (1851). 

"Commercial  Bank  of  Lake  Erie  v.  Norton,  1  Hill  501  (1841). 

'Weaver  v.  Carnall,  35  Ark.  198  (1879). 

5Cbitty  37 ;  Fenn  v.  Harrison,  3  T.  R.  757;  East  India  Co.  v.  Hensley,  1 
Esp.  Ill ;  Sykes  v.  Giles,  5  M.  &  W.  645. 

"Union  Bank  of  N.  Y.  v.  Mott,  39  Barb.  180  (1863). 

1  Withington  v.  Herring,  5  Bing.  442. 


JOINDER    OF    AGENTS.  503 

be  strictly  construed.1  Thus,  a  power  of  attorney,  enumer- 
ating certain  objects  "and  all  other  acts,"  will  not  include 
power  to  make  a  bill  of  exchange.2  Nor  will  a  power  to 
accept  or  indorse  commercial  paper  be  included  in  a  general 
power  to  transact  business,  and  receive  and  pay  debts,3  or  to 
regulate  and  take  account  of  earnings,  distribute  expenses, 
regulate  the  running  of  boats,  maintain  offices,  &c.4 

But  a  power  to  transact  all  the  principal's  business  in  a 
certain  county  has  been  held  to  authorize  the  transfer  of  a 
note  belonging  to  the  principal.5  So,  an  authority  given  by 
the  directors  of  a  corporation  to  the  president,  bestowing 
"full  power  and  control  of  all  its  business,"  will  enable  him 
to  borrow  money  for  the  corporation  and  execute  a  note  in 
its  name  for  payment.6  So,  where  a  principal  said  that  he 
would  stand  to  whatever  arrangement  his  agent  made,  he  was 
held  liable  for  a  note  given  by  the  agent  in  the  transaction 
contemplated.7  So,  where  he  agreed  in  a  letter  addressed  to 
the  agent  "to  become  responsible  for  all  contracts  made  by 
him  for  machinery,  &c,  for  the  use  of  his  factory." i  So,  if 
the  principal  put  money  into  the  hands  of  his  agent  with 
power  "to  manage,  loan,  control  and  collect,"  he  would  have 
authority  to  bind  his  principal  by  extending  the  time  for 
payment  of  a  note  belonging  to  him.9  So,  an  authority  "to 
sign  my  name  where  expedient  in  the  transaction  and  con- 
duct of  such  business  as  to  my  attorney  shall  seem  meet," 

1  Byles  33  ;  1  Edwards  \  79. 

2Rossiter  v.  Rossiter,  8  Wend.  494  (1832).  Nor  does  such  power  extend  to 
an  acceptance,  Attwood  v.  Munnings,  7  B.  &  C.  278;  S.  C,  1  M.  &  R.  78 ;  or  in- 
dorsement, Esdaile  v.  La  Nauze,  1  Y.  &  C.  394. 

3Bvles33;  Chitty  39;  1  Parsons  106;  Hogg  v.  Smith,  1  Taunt.  347;  Murray 
v.  East  India  Co.,  5  B.  &  Aid.  204;  Gardner  v,  Baillie.6  T.  R.  591.  overruling 
Howard  v.  Baillie,  2  H.  Bl.  618;  Kilgour  v.  Finlyson,  1  H.  Bl.  155. 

4 Beach  v.  Vandewater,  1  Sandf.  277  (1848). 

5\cwland  v.  Oakley,  6  Yerg.  489  (1834). 

"Castle  v.  Belfast  Foundry  Co.,  72  Me.  167  (1831).  But  authority  to  man- 
age a  store  and  sell  and  purchase  goods  for  it  will  not  enable  such  agent  to 
borrow  money  and  hind  his  principal  by  notes  given  for  such  loans,  Perkins 
v.  Boothby,  71  lb.  91  (1880). 

7Tanner  v  Hastings,  2  Bradw.  283  (1878). 

"Frost  v.  Wood,  2  Conn.  23  (1816). 

•Hurd  v.  Marple,  2  Bradw.  402  (1878);  S.  C,  10  Th.  418  (1881). 


504  CAPACITY PRINCIPAL    AND    AGENT. 

will  cover  a  note  given  by  the  agent.1  Bat  it  has  been  held 
that  a  power  "to  use  and  sign  my  name"  will  not  include 
the  execution  of  a  non-negotiable  note  for  the  payment  of  a 
debt  with  a  clause  for  attorney's  fees  on  non-payment.2  In 
like  manner,  power  to  an  agent  to  act  in  a  partition  matter 
for  his  principal  authorizes  the  execution  of  a  note,  if  neces- 
sary for  the  transaction  of  the  business.3  But  where  an  agent 
was  put  in  charge  of  a  tract  of  land  with  authority  to  advance 
money  for  the  taxes,  it  was  held  that  the  principal  was  not 
liable  on  a  note  given  by  the  agent  in  the  principal's  name 
for  such  taxes.4  So,  it  was  held  that  an  agent  authorized  to 
make  advances  on  consignments  and  draw  on  his  principal 
for  the  amount  could  not  draw  against  consignments  made 
by  himself.5  An  agent  may,  however,  draw  in  his  own  name 
upon  his  principal  in  execution  of  an  authority  "as  my  agent 
to  make  drafts  on  me.6 

§  358.  Implication  from  Other  Express  Power. — It  has  been 
held,  furthermore,  that  authority  to  accept  a  bill  of  exchange 
cannot  be  implied  from  an  authority  to  pay  it.7  Nor  will 
authority  to  collect  rents  include  the  power  to  indorse  a  check 
payable  to  the  principal  received  in  payment  for  them  ;8  or 
to  give  a  note  for  the  employment  of  counsel  in  making  such 
collection.9  Nor  will  power  to  collect  a  bill  of  exchange 
include  power  to  sell  it.10    So,  an  attorney-at-law  receiving 

'Dollfus  v.  Froach,  1  Denio  367  (1845). 

2 First  National  Bank  v.  Gay,  63  Mo.  33  (1876). 

•Layet  v.  Gano.  17  Ohio  466  (1848). 

•Webber  v.  Williams  College,  23  Pick.  302  (1839). 

'Schimmelpennick  v.  Bayard,  1  Peters  264  (1828). 

•Merchants  Bank  v.  Griswold,  72  N.  Y.  472  (1878). 

'Gould  v.  Norfolk  Lead  Co.,  9  Cush.  338. 

8  Robinson  v.  Chemical  Nat.  Bank,  86  N.  Y.  407  (1881). 

9 Layet  v.  Gano,  17  Ohio  466  (1848). 

10Goodfellow  v.  Landis,  36  Mo.  168(1865);  Smith  v.  Johnson,  71  lb.  382 
(1880);  Thompson  v.  Elliot,  73  III.  221;  Padfield  v.  Green,  85  lb.  529.  So, 
too,  in  the  case  of  a  power  to  one  joint  payee  to  collect  for  the  other, 
Ryhiner  v.  Feickert,  92  111.  305  (1879).  And  an  agent  to  hold  and  collect  a 
note  for  the  payee  has  no  authority  to  pledge  or  dispose  of  it  after  it  be- 
comes due,  Tenipleton  v.  Poole,  59  Cal.  286  (1881).  So,  power  to  sell  goods 
and  take  a  note  for  the  principal  will  not  imply  power  to  receive  payment 
of  the  note  after  its  delivery  to  the  principal,  Draper  v.  Rice,  56  Iowa  114 


CONSTRUCTION    OF    EXPRESS   POWERS.  505 

an  overdue  note  for  collection  is  not  thereby  authorized  to 
dispose  of  it.1 

And  authority  given  to  an  agent  to  sell  a  note  will  not 
include  authority  to  bind  the  principal  by  a  guaranty  of  it.2 
Although  it  has  been  held  that  power  given  to  a  broker  to 
sell  cotton  by  sample  includes  power  to  warrant  it.3  Power 
to  purchase  goods  and  pay  for  them,  will  not  authorize  the 
agent  to  give  a  bill  or  note  in  payment;4  or  to  accept  a  bill 
for  the  same  purpose.5  So,  authority  to  sell  "  for  cash  "  will 
not  authorize  an  agent  to  take  a  note  in  payment,  and  the 
principal  may  disavow  the  note  and  sue  for  the  value  of  the 
goods.6  So,  power  to  sell  goods  does  not  imply  power  to  in- 
dorse a  note  received  for  them.7  So,  power  to  receive  money 
from  a  third  person  by  drawing  upon  him  does  not  authorize 
the  agent  to  draw  a  bill  payable  to  his  own  order  on  such 
third  person.8 

§  359.  Construction  of  Express  Powers. — An  authority 
"to  do  all  acts  in  my  name  concerning  certain  operations" 
referred  to  and  to  sign  the  principal's  name  to  any  "  Com- 
pany Articles,"  will  not  render  the  principal  liable  on  a  note 
given  by  the  agent.9  So,  where  authority  is  given  to  an 
agent  to  make  a  note  for  a  particular  purpose,  he  has  no 
authority  to  do  so  for  any  other  purpose.10  Thus,  if  author- 
ized to  buy  grain,  and  draw  bills  on  his  principal  in  pay- 
ment, he  cannot  buy  tobacco  and  bind  his  principal  by  bills 
drawn  for  that.11    Or  if  authorized  to  draw  a  note  for  dis- 

(1881).  So,  an  agent  authorized  to  collect  a  note  is  not  thereby  authorized 
to  give  construction  to  a  doubtful  word  in  it  so  as  to  bind  his  principal.  Van 
Yechten  v.  Smith,  59  lb.  173  (1882). 

'Goodfellow  v.  Landis,  36  Mo.  168  (1865). 

2Graul  v.  Strutzel,  53  Iowa  7L2  (1880). 

'Andrews  v.  Kneeland,  6  Cow.  354  (1826). 

4 Mills  v.  Carnly,  1  Bosw.  159  (1857) ;  Brown  v.  Parker,  7  Allen  337. 

"Gould  v.  Norfolk  Lead  Co.,  9  Cush.  338. 

"State  of  Wisconsin  v.  Torinus,  24  Minn.  332  (1877). 

'Bank  of  Hamburg  v.  Johnson,  3  Rich  42  (1846). 

"Hogarth  v.  Wherley,  L.  R.  10  C.  P.  530  (1875). 

"Washburn  v.  Alden,  5  Cal.  463  (1855). 

"Nixon  17.  Palmer,  8  N.  Y.  308  (1853). 
'"Hopkins  v.  Blane,  1  Call  361  (1798). 


506  CAPACITY — PRINCIPAL    AND    AGENT. 

count  to  obtain  a  loan,  he  has  no  power  to  give  a.  note  for 
groceries  purchased  by  himself  so  as  to  bind  his  principal.1 

In  like  manner,  if  authorized  to  make  a  note  payable  at  a 
particular  bank  and  to  it,  he  cannot  give  a  note  payable  in 
any  other  way.2  Or  if  authorized  to  give  a  note  payable  in 
six  months,  he  cannot  give  a  note  payable  sooner.3  So,  if 
authorized  to  draw  a  bill  of  exchange  at  four  months,  he 
cannot  make  it  payable  sooner  so  as  to  bind  his  principal  by 
ante-dating  it.4  But  it  has  been  held  that  authority  to  renew 
a  note  in  sixty  or  ninety  days  will  cover  the  indorsement  of 
a  note  payable  in  eighty-eight  days.5 

§  360.  The  acceptor  of  a  bill  by  his  acceptance  admits  the 
authority  of  the  drawer  as  such,  where  the  bill  is  drawn  by  an 
agent ;  but  this  does  not  include  an  admission  of  his  author- 
ity to  indorse,  though  the  indorsement  was  on  the  bill  at  the 
time  the  acceptance  was  given.6  Where  power  is  given  to 
an  agent  to  obtain  discount  for  his  principal  without  restric- 
tion, power  to  indorse  will  be  implied;7  but  not  power  to 
pledge  a  bill  as  security  for  the  individual  debt  of  the  agent.8 

Under  the  same  rule  of  strict  construction  it  has  been 
held  that  power  to  give  a  bond  does  not  include  a  note,9  or 
vice  versa.10  So,  power  to  give  "any  note  or  other  instrument 
of  writing"  will  not  authorize  a  bill  single.11  Power  to  pur- 
chase land  and  pay  by  draft  on  the  principal  will  not  author- 

1  Horlons  v.  Townes,  6  Leigh  47  (1835). 

'Morrison  v.  Taylor,  6  T.  B.  Mori.  82  (1827). 

3 Batty  v.  Carswell,  2  Johns.  48  (1806).  But  see  Adams  v.  Flanagan,  36 
Vt.  412  (1863),  where  a  thirty-day  note  was  considered  an  immaterial  de- 
parture from  a  verbal  authority  for  a  twenty-day  note. 

4Tate  v.  Evans,  7  Mo.  419  (1842). 

6 Bank  of  the  State  of  S.  C.  v.  Herbert,  4  McCord  89  (1827). 

6Robinson  v.  Yarrow,  7  Taui.it.  455;  Prescott  v.  Flinn,  9  Bing.  19. 

7Fenn  v.  Harrison,  4  T.  R.  177.  Although  on  a  previous  trial  of  the  same 
case,  where  indorsing  appeared  to  have  been  expressly  prohibited  by  the 
principal,  he  was  not  held  liable,  lb.,  3  T.  R.  757. 

"Foster  v.  Pearson,  C.  M.  &  R.  849;  5  Tyrw.  225;  notwithstanding  any 
usage  to  the  contrary,  lb.     As  to  this,  however,  see  infra. 

'School  Directors  v.  Sippy,  51  III.  287  (1870). 

10Mayor,  &c,  of  Little  Rock  v.  State  Bank,  8  Ark.  227  (1847). 

"Alder  v.  Buckley,  1  Swan  69  (1851). 


ACCOMMODATION    AND    PLEDGE.  507 

ize  a  note  by  the  agent  as  attorney  for  him.1  Power  to  give 
a  check  will  not  include  a  bill  of  exchange,2  or  a  post-dated 
check;3  nor  will  such  post-dated  check  be  covered  by  a 
power  "to  make,  sign,  indorse  and  accept  all  checks,  note.*, 
drafts  and  bills  of  exchange."4  Authority  to  draw  a  "com- 
pany note"  will,  however,  cover  a  bill  of  exchange.5  But 
power  to  accept  for  the  principal  bills  of  exchange  drawn 
by  his  agent  or  correspondent,  it  has  been  held,  does  not 
include  acceptances  on  partnership  account.6 

§  361.  Acoommodation  and  Pledge — Not  Included  in  General 
Powers. — It  is  also  to  be  observed  that  the  general  power  to 
give  a  bill  or  note  does  not  include  accommodation  paper;7 
although  if  such  accommodation  paper  were  given  by  the 
agent  with  the  principal's  consent,  and  to  take  up  other 
similar  paper  upon  which  he  was  liable,  he  would  be  bound.8 

Authority  to  "sell,  indorse  and  assign"  a  note  will  not 
include  a  transfer  of  it  as  collateral  for  the  individual  note 
of  the  agent  which  he  has  had  discounted.9  Nor,  as  we  have 
seen,  can  an  agent,  authorized  to  discount  his  principal's 
paper,  pledge  it  for  his  own  debt.10  Although  an  exception 
seems  to  have  been  made  to  this  rule  by  the  usage  of  London 
in  favor  of  a  broker  pledging  such  paper,  with  other  like 
paper  of  his  principal,  in  order  to  effect  the  object  desired 
by  his  principal.11 

It  has  also  been  held  that  power  to  make  and  discount 

'Sage  v.  Sherman,  Hill  &  Denio  147. 

2  Bank  of  Deer  Lodge  v.  Hope  Mining  Co.,  3  Montana  146  (1878). 

sForster  v.  Mackreth,  L.  R.  2  Exch.  163  (1867). 

4  Nash  v.  Mitchell,  71  N.  Y.  199  (1877) ;  S.  C,  3  Abh.  N.  C.  171. 

'Tripp  v.  Swanzey  Paper  Co.,  13  Pick.  291  (1832). 

"Attwood  v.  Mannings,  7  B.  &  C.  278;  1  M.  &  R.  78.  See,  too,  Bank  of 
Bengal  v.  Macleod,  7  Moo.  P.  C.  35. 

7Stainer  v.  Tysen,  3  Hill  279(1842);  Sage  v.  Sherman,  supra;  Wallace  v. 
Branch  Bank,  1-  Ala.  565  (1840) ;  German  Nat.  Bank  v.  Stndley,  1  Mo.  App. 
260  (1876).  But  see,  as  to  effect  of  representation  by  agent,  North  River 
Bank  v.  Aymer,  3  Hill  202  (1842) ;  Kingsley  v.  Bank  of  the  State.  3  Yerg.  107. 

"German  Nat.  Bank  v.  Stndley,  1  Mo.  App.  260  (1876). 

9Bank  of  Bengal  v.  Macleod,  7  Moo.  P.  C.  35  (1S49) ;  Bank  of  Bengal  v. 
Fagan,  lb.  61  (1849). 

,0Haynes  v.  Foster,  2  C.  &  M.  237. 

"Byles  36;  Foster  v.  Pearson,  1  C.  M.  £  R.  849;  S.  C,  5  Tyrw.  2">. 


508  CAPACITY PRINCIPAL    AND    AGENT. 

notes  does  not  include  the  power  to  give  renewals.1  Nor  can 
an  agent  alter  a  note  by  changing  the  order  of  the  indorse- 
ments upon  it.2  And  the  fact  of  their  being  accommodation 
indorsements  implies  no  power  of  alteration.3  So,  it  seems 
that  a  general  power  to  draw  bills  of  exchange  is  limited  to 
the  case  where  the  principal  has  funds  in  the  drawee's  hands 
to  be  drawn  upon.4  This  is  true  at  least,  where  the  principal 
specifies  in  the  authority  given,  that  such  bills  are  to  be  drawn 
when  he  has  an  account  to  draw  against.5 

§  362.  Authority  Implied  from  Declarations  and  Conduct. — 
The  authority  of  an  agent  need  not  be  expressly  conferred 
on  him,  but  may  be  implied  from  his  conduct  coupled  with 
that  of  his  principal.6  So  a  corporation  may  be  bound  by 
the  act  of  an  agent,  his  authority  being  inferred  from  facts 
and  circumstances  and  not  shown  by  any  writing.7  And  it 
is  enacted  by  statute,  in  England,  that  bills  and  notes  ac- 
cepted, made  or  indorsed  in  the  name  of  a  company  under 
its  authority,  express  or  implied,  shall  be  binding  upon  it.8 
So,  where  drafts  are  drawn  by  an  agent  without  further  writ- 
ten authority  than  a  letter  from  the  principal  asking  the 
person  addressed  to  give  A.  any  assistance  he  might  need  as 
his  agent  and  charge  it  to  him,  other  acts  of  the  agent  of 
like  character  confirmed  by  the  principal  are  admissible  to 
strengthen  the  implication  of  authority  on  his  part  to  make 
the  draft  in  question.9 

'Ward  v.  Bank  of  Kentucky,  7  T.  B.  Mon.  93. 

2 Bark  of  South  Carolina  v.  W  Willie,  4  MeCord  428  (1828). 

3iEtna  Nat.  Bank  v.  Winchester,  43  Conn.  391  (1876). 

*Craighead  v.  Peterson,  10  Hun  596;  Crescent  City  Bank  v.  Hernandez,  25 
La.  An.  43;  Stainback  v.  Read,  11  Gratt.  281  (1854).' 

5 Craighead  v.  Peterson,  supra. 

6Chitty  40;  1  Daniel  273;  Bank  of  Columbia  v.  Patterson,  7  Cranch  299; 
Narragansett  Bank  v.  Atlantic  Silk  Co.,  3  Mete.  2S2 ;  Davison  v.  Robertson, 
3  Dowl.  229;  Neal  v.  Erving,  1  Esp.  61;  Haughton  v.  Ewhank,  4  Campb.  188: 
Valentine  v.  Packer,  5  Penna.  St.  333;  Union  Bank  v.  Ridgely,  1  Hair.  &  G. 
321,  419  (1827);  Humphreys  v.  Wilson,  44  Miss.  328  (1870).  Although  it 
seems  that  in  Louisiana  an  express  power  is  necessary  for  making  a  prom- 
issory note,  Nugent  v.  Hickey,  2  La.  An.  358  (1847) ;"  Avery  v.  Lauve,  1  H>. 
457(1840). 

'American  Ins.  Co.  v.  Oakley,  9  Paige  496  (1842). 

aLindus  v.  Melrose,  27  L.  .1.  Exch.  326;  2  Hnrlst.  &  N.  293;  25  and  26  Vict, 
e.  S9  \  47.  amended  by  30  and  31  Vict.  <•.  131. 
9Friedlander  v.  Cornell,  45  Tex.  585  [18701. 


RECOGNITION    OF    SIMILAR    ACTS.  509 

But  the  acts  and  declaration  of  the  agent  alone,  unsup- 
ported by  act  or  statements  of  the  principal,  cannot  be  used 
as  evidence  of  the  agency.1  It  has  been  held,  however,  that 
frequent  and  usual  acts  of  the  agent  in  subscribing  his  prin- 
cipal's name,  not  disavowed  by  the  principal,  are  sufficient 
to  charge  him  without  any  express  power  having  been  given.2 
So,  if  the  agent  has  given  a  note  in  the  principal's  business 
and  for  his  benefit,  authority  may  be  implied  from  this  fact, 
as  well  as  from  acts  of  the  principal,  or  the  custom  of  his, 
business.3  In  connection  with  such  circumstances  the  agent's 
own  declarations  are  proper  evidence  to  be  submitted  to  a 
jury  upon  the  question  of  agency.4  If  the  authority  has 
been  conferred  by  parol,  it  may  be  proved  by  the  testimony 
of  the  agent,  as  by  that  of  any  other  witness.5  And  even 
where  the  express  power  given  to  a  company's  agent  extends 
only  to  note,  of  which  the  consideration  has  gone  immedi- 
ately to  its  use,  it  has  been  held  that  further  authority 
may  be  proved  by  the  confession  of  a  member  of  the  com- 
pany.6 

§  363.  Authority  Implied  from  Recognition  of  Similar 
Acts. — Agency  will  not,  however,  be  implied  from  prior 
conduct  of  the  principal,  unless  it  amount  to  a  plain  recog- 
nition of  the  agent's  action  in  the  particular  case  or  in  other 
similar  cases.  Thus,  it  has  been  held  that  the  fact  that  the 
agent  managed  the  principal's  store  and  had  transacted  bank- 
ing business  for  him  and  had  sold  a  bill  of  exchange  and 
renewed  a  note  in  his  name,  will  not  amount  to  evidence  of 
authority  to  make  a  note.7  On  the  other  hand,  payment 
by  a  principal  of  previous  acceptances  given  by  the  agent 

'Poore  v.  Magruder,  24  Gratt.  197  (1874);  Streeter  v.  Poor,  4  Kans.  412 
(1868). 

2Neal  v.  Erving,  1  Esp.  61 ;  Haughton  v.  Ewbank,  4  Campb.  188;  Watkina 
v.  Vince,  2  Stark.  368. 

sHuntt>.  Chapin,  6  Lans.  139  (1872). 

4 National  Mechanics'  Bank  v.  Nat.  Bank,  36  Md.  5  (1872). 

6Gould  v.  Norfolk  Lead  Co.,  9  Cush.  338. 

•Odiorne  v.  Maxcy,  15  Mass.  39  (1818). 

7  Smith  v.  Gibson,  6  Black f.  369. 


510  CAPACITY PKINCIPAL    AND    AGENT. 

is  presumptive  evidence  of  the  agent's  authority  to  give 
an  acceptance.1 

The  recognition  and  payment  by  a  father  of  previous  in- 
dorsements by  his  son,  without  any  disclaimer  until  after  the 
son  had  absconded,  amounts  to  an  implied  authority  to  the 
son  to  indorse  for  him.2  So,  it  has  been  held  that  where  a 
son  has  been  shown  to  have  signed  bills  of  exchange  three 
or  four  times  for  his  father  and  they  have  been  recognized 
by  him,  this  is  sufficient  to  render  admissible  as  evidence  a 
guaranty  in  the  father's  name  by  the  son,  or  in  his  hand- 
writing, so  as  to  leave  the  question  one  of  fact  for  the  jury.3 
Recognition,  however,  by  the  father  of  a  single  such  instru- 
ment, or  silence  on  his  part  on  receiving  notice  of  a  note 
forged  in  his  name  by  his  son,  will  not  imply  any  authority 
to  give  such  note.4  Nor  can  the  son's  authority  to  sell  a 
note  belonging  to  his  father  be  implied  either  from  posses- 
sion by  him  with  authority  to  receive  the  money  due  on  it 
or  from  his  having  in  several  instances  borrowed  money  for 
his  father.5  But  if  the  father  has  previously  paid  notes 
forged  in  his  name  by  his  son,  knowing  them  to  be  such, 
this  would  be  admissible  against  him  as  evidence  of  an 
authority.6  So,  if  he  had  knowingly  paid  acceptances  of  like 
character.7  But  the  propriety  of  drawing  such  inferences 
as  to  authority  by  the  principal  from  payment  of  a  previous 
forgery,  has  been  denied  in  Maryland,8  and  in  Louisiana.9 

In  order  that  authority  to  bind  the  principal  by  a  bill  or 

^yles  84;  Chittv41;  Barber  v.  Gingel,  3  Esp.  60;  Llewellyn  v.  Winck- 
worth,  13  M.  &  W.\598;  Morris  v.  Bethell,  L.  R.  5  C.  P.  51  (1869) ;  Kelley  v. 
Lindsey,  7  Gray  287  (1&56).  And  evidence  of  such  former  habit  may  go  to 
the  jury  to  support  the  allegation  of  authority  from  the  prin«ipal(  Commer- 
cial Bank  v.  Norton,  1  Hill  501  (1841). 

'Abeel  v.  Seymour,  6  Hun  656  (1876). 

3\Vatkins  v.  Vince,  2  Stark.  368. 

♦Greenfield  Bank  v.  Craft,  2  Allen  269  (1861). 

6Ames  v.  Drew,  31  N.  H.  475  (1855). 

6Hammond  v.  Varian,  54  N.  Y.  398  (1873). 

7 Cash  v.  Taylor,  Lloyd  &  W.  178;  Llewellyn  v.  Winckworth,  supra. 

"Whiteford  v.  Monroe,  17  Md.  135  (1860) ;  Walters  v.  Munroe,  17  Md.  150 
(1860). 

"Duconge"  v.  Forgay,  15  La.  An.  37  (JL860). 


IMPLICATION    MUST    BE    NECESSARY.  511 

note  may  be  implied  from  previous  recognition  on  his  part 
of  similar  acts,  it  is  necessary  that  the  other  have  taken  the 
instrument  in  question  on  the  strength  of  such  previous 
recognition.1  And  it  has  been  held  that  one  who  knowingly 
allows  his  agent  to  indorse  notes  and  procure  discounts  in  his 
name  without  taking  any  steps  to  make  known  the  agent's 
want  of  authority,  makes  himself  liable  by  such  passive  con- 
duct.2 

§  364.  Implication  Must  be  Necessary. — Where  authority 
to  make  commercial  paper  is  inferred,  this  must  be  by  neces- 
sary implication.  It  cannot  be  implied  merely  from  au 
authority  to  purchase  goods  for  the  principal.3  So,  author- 
ity to  take  from  a  buyer  of  goods  an  acceptance  of  a  draft 
with  the  drawer's  name  blank,  made  payable  "  to  my  order  " 
and  fraudulently  filled  and  misappropriated  by  the  agent,  is 
not  to  be  implied  either  from  a  letter  of  the  principal  to  the 
agent,  saying  he  should  like  to  draw  upon  the  buyer  for  the 
goods,  nor  from  any  similar  previous  transaction.4  On  the 
other  hand,  where  goods  have  been  purchased  for  the  prin- 
cipal and  a  draft  given  by  the  agent  on  him  in  payment, 
authority  to  give  the  draft  will  be  implied  from  his  receiving 
the  goods  after  full  information  as  to  the  transaction.5 

So,  authority  to  receive  payment  of  a  note  may  be  implied 
from  its  possession  by  the  agent,6  but  not,  as  has  been 
already  said,  authority  to  transfer  it.7  And  possession  by 
an  agent  of  an  unindorsed  note  gives  him,  it  has  been  held, 
no  authority  to  receive  payment.8  But  such  authority  may 
be  implied  from  his  having  received  already  a  partial  pay- 

lSt.  John  v.  Redmond,  9  Porter  428  (1S39) ;  Rawson  v.  Curtiss,  19  111.  456 
(1858);  New  York  Iron  Mine  v.  Citizens'  Bank,  44  Mich.  344  (1880). 

2 Morse  v.  Diebold,  2  Mo.  App.  163  (1876). 

♦Temple  v.  Pomroj  ,  4  Gray  128  (1855) ;  Paige  v.  Stone,  10  Mete.  160  (1845). 

♦Hogarth  v.  Wherley,  L.  R.  10  C.  P.  630  (1875). 

5Nutting  ?-.  Sloan,  59  Ga.  392  (1876). 

6 Morris  v.  Foreman,  1  Dall.  193  (1787) ;  Merritt  v.  Cole,  9  Hun  98  (1876), 
affirmed  14  lb.  324  (1878) ;  Murrel  v.  Jones,  40  Miss.  565  (1866) ;  Streeter  v. 
Poor,  4  Kans.  412  (1868) ;  Floral  v.  Merchant,  26  La.  An.  741  (1874). 

■Scott  v.  Stevenson,  3  Hun  352  (1S74). 

8Doubleday  v.  Kress,  50  N.  Y.  410  (1372). 


512  CAPACITY PRINCIPAL    AND    AGENT. 

ment  of  it  with  the  principal's  knowledge  and  without  dis- 
sent on  his  part.1  So,  if  an  agent  receives  authority  to 
employ  servants  this  has  been  held  to  authorize  payment  of 
their  wages  by  a  note  given  by  him  for  that  purpose.2 

§  365.  Authority — Implied  from  Relation  of  Parties. — The 
authority  of  one  person  to  make  commercial  paper  or  indorse 
it  for  another  is  often  implied  from  their  relation  to  one 
another.  Thus,  a  cashier  may  bind  his  bank  by  giving  a 
certificate  of  deposit,  and  in  such  case  the  cashier's  authority 
may  be  shown  from  the  custom  of  the  bank.3  So,  partners 
may  bind  their  firm  by  commercial  paper  executed  for  it. 
But  this  does  not  extend  to  bills  or  notes  executed  for  one 
another,  although  it  has  been  held  that  previous  knowledge 
or  acknowledgment  by  the  partner  whose  name  is  used  is 
admissible  evidence  of  agency,  as  in  other  cases.4  If,  how- 
ever, one  partner  has  received  authority  from  another  to 
negotiate  a.  single  note  belonging  to  him,  authority  cannot 
be  implied  from  this  to  negotiate  two  such  notes,  and  the 
transfer  of  the  latter  will  not  be  binding  on  the  principal.5 
But  it  has  been  held  that  power  to  draw  a  bill  of  exchange 
is  admissible  as  evidence  to  a  jury  from  which  they  may 
infer  power  to  indorse  one.6 

§  366.  Authority  Implied  from  Official  Employment. — As 
has  been  said,  authority  to  make  or  indorse  commercial 
paper  may  often  be  implied  from  the  relation  of  the  parties 
or  the  nature  of  the  agent's  employment.7  Such  authority 
belongs  to  a  general  agent  or  factor,  and  a  principal  will  be 
liable  for  all   his  acts.8     Although    the  authority  of  such 

lWardrop  v.  Dunlop,  1  Hun  325  (1874). 

2  James  v.  Lewis,  26  La.  An.  664  (1874). 

3 Barnes  v.  Ontario  Bank,  19  N.  Y.  152,  159  (1859).  And  such  certificate 
does  not  come  within  the  statute  requiring  bills  and  notes  issued  for  circu- 
lation as  money  to  be  signed  by  the  president  and  cashier,  lb. 

4Stroh  v.  Hinchman,  37  Mich.  490  (1877). 

6Callender  v.  Golson,  27  La.  An.  311  (1875). 

•Prescott  v.  Flynn,  9  Bing.  19 ;  S.  C,  2  Moo.  &  Sc.  22. 

'Trundy  v.  Farrar,  32  Me.  .225  (1850) ;  Forsyth  v.  Day,  46  Me.  176  (1858). 

8Chitty  37;  1  Edwards  \  79.  So,  a  general  agent  appointed  to  carry  on 
lumbering  business  for  a  company  may  give  a  company  note  for  services 
rendered  in  that  business,  Tap  pan  v.  BaMey,  4  Mete.  529  (1842). 


AUTHORITY  IMPLIED  FROM  OFFICIAL  EMPLOYMENT.      513 

agent  or  factor  to  pledge  his  principal's  goods  did  not  exist 
until  given  by  the  statute  of  6  Geo.  IV.,  he  was  held  to  have 
the  power  at  common  law  as  to  bills  of  exchange.1  So,  where 
a  firm  is  engaged  in  business  as  a  dealer  in  commercial  paper, 
authority  will  be  implied  in  its  general  cashier  and  financial 
agent  to  give  checks  and  indorsements.2  So,  a  corporation 
will  be  bound  by  an  acceptance  by  its  general  agent  on 
account  of  goods  consigned  to  it  for  sale  on  commission.3 
So,  where  the  principal's  business  is  managed  by  an  agent 
who  is  the  ostensible  principal,  the  principal  will  be  bound 
by  his  acceptance  although  expressly  forbidden  in  his  in- 
structions.4 So,  a  corporation  will  be  liable  on  a  note  inci- 
dental to  its  business  given  by  its  general  agent.5 

But  it  will  not  be  inferred  that  an  agent  for  managing  a 
farm  has  authority  to  bind  his  principal  by  giving  a  bill  of 
exchange.6  Nor  can  the  manager  of  a  store  do  so;7  nor  the 
master,8  or  supercargo  of  a  vessel  ;9  nor  a  merchant's  clerk.10 
Nor  can  a  clerk  acting  outside  of  his  regular  employment 
and  without  authority  bind  his  principal  by  a  bill  of  lading.11 
In  cases  of  this  sort  the  question  whether  an  authority  can 
be  inferred  will  sometimes  depend  on  whether  the  giving  of 
such  paper  has  been  for  goods  or  other  things  necessary  to 

'Newsome  v.  Thorton,  6  East  21 ;  Martin  v.  Coles,  1  Maule  &  S.  140;  Solly 
v.  Rathbone,  2  M.  &  S.  298;  Ginchard  v.  Morgan,  4  Moore  36. 

"Edwards  v.  Thomas,  66  Mo.  468  (1877). 

3Munn  v.  President,  &c,  Commission  Co.,  15  Johns.  44  (1818). 

'Edmunds  v.  Bushell,  L.  R.  1  Q.  B.  97,  35  L.  J.  21.  But  see  contra,  as  to 
the  power  of  a  general  agent  to  accept  a  bill  of  exchange,  Sewanee  Mining 
Co.  v.  McCall,  3  Head  619  (1859). 

b  Wallace  v.  Sampson,  20  La.  An.  143  (1868). 

•Davidson  v.  Stanley,  2  Man.  &  Gh  721;  Nugent  v.  Hickev,  2  La.  An.  358 
(1847);  Hills  v.  Upton,  24  La.  An.  427  (1872);  Mever  v.  Baldwin,  52  Miss. 
263  (1876) ;  Robertson  v.  Levy,  19  La.  An.  327  (1867). 

'Smith  v.  Gibson,  6  Blackf.  369. 

8 Either  to  draw  a  bill  of  exchange,  Bowen  v.  Stoddard,  10  Mete.  375;  or 
accept  it,  May  v.  Kelly,  27  Ala.  497  (1855).  Nor  can  he,  except  in  case  of 
sudden  and  unforeseen  necessity,  draw  a  bill  against  the  ship's  cargo,  New- 
hall  v.  Dunlap,  14  Me.  180  (1837). 

•Scott  v.  McLellan,  2  Me.  199  (1823). 

,0Terry  v.  Fargo,  10  Johns.  114  (1813). 

"Dows  v.  Perrin,  16  N.  Y.  325  (1867). 

2h 


514  CAPACITY PRINCIPAL    AND    AGENT. 

the  transaction  of  the  principal's  business.1  An  auctioneer's 
clerk  has  not,  in  general,  authority  to  bind  his  principal  by 
such  paper.2  Neither  has  the  clerk  of  a  steamboat;3  nor  the 
purchasing  agent  of  a  carriage  factory.4  So,  an  attorney-at- 
law  receiving  a  note  for  collection  has  no  authority  to  transfer 
it.5  And  this  is  true  of  other  collecting  agents.6  As  to  the 
authority  of  an  agent  inferable  from  the  possession  of  a  bill 
or  indorsement  in  blank,  the  reader  is  referred  to  another 
part  of  this  work. 

§  367.  Corporate  Authority  Implied. — It  has  already  been 
said  that  authority  from  a  corporation  may  be  implied  as 
from  an  individual.7  If,  however,  its  charter  describes  a 
particular  way  in  which  authority  to  act  for  it  must  be  con- 
ferred, this  way  must  be  followed  and  no  other  will  be  suffi- 
cient.8 But  a  statutory  requirement  as  to  the  method  of 
executing  notes  and  bills  issued  by  a  bank  for  circulation  as 
money  is  not  to  be  applied  to  certificates  of  deposit  or  other 
contracts  not  made  for  that  purpose.9  And  it  has  been  held 
in  a  recent  case,  that  money  borrowed  by  the  officer  of  a 
corporation  upon  notes  belonging  to  it  and  applied  to  its  use, 
with  the  knowledge  and  consent  of  the  trustees,  amounts  to  a 
recognition  by  the  company  of  the  action  of  its  agent  and 

'Odiorne  v.  Maxcy,  13  Mass.  178  (1816). 

2Entz  v.  Mills,  1  McMull.  453  (1840). 

3Anderson  v.  Irwin,  7  La.  An.  494  (1852). 

*  Paige  v.  Stone,  10  Mete.  160  (1845). 

6Russell  v.  Drummond,  6  Ind.  216  (1855). 

6 Graham  v.  U.  S.  Savings  Institution,  46  Mo.  187. 

'Lester  v.  Webb.  1  Allen  34  (1861)  ;  Melledge  v.  Boston  Iron  Co.,  5  Cush. 
158,  175:  Fay  v.  Noble,  12  Cush.  1,  16;  Williams  v.  Cheney,  3  Gray  215; 
Conover  v  Mut.  Ins.  Co.,  1  N.  Y.  290. 

8McCullough  v.  Moss,  5  Den.  567,  575  (1S46) ;  Cattron  v.  First  Universalist 
Society  of  Manchester,  46  Iowa  106  (1877).  Thus,  the  rector  and  wardens 
cannot  by  their  note  bind  a  church  corporation  whose  power  of  action  is 
vested  by  charter  in  the  rector,  wardens  and  vestry,  Episcopal  Char.  Soc.  v. 
Episc.  Church,  1  Pick.  372  (1823).  So,  if  the  charter  of  a  bank  requires  its 
bills  to  be  signed  by  the  president  and  cashier,  the  corporation  will  not  be 
liable  for  bills  signed  by  the  vice-president  and  assistant  cashier,  Planter's 
Bank  v.  Erwin,  31  Ga.  371  (1860).  But  the  bills  intended  in  such  statutory 
requirement  are  only  bank  bills  intended  for  circulation,  Paine  v.  Stewart, 
33  Conn  516  (1866) ;' Barnes  v.  Ontario  Bank,  19  N.  Y.  152,  157  (1859). 

9Safford  v.  Wyckoff,  4  Hill  442,  462  (1S42) ;  Barnes  v.  Ontario  Bank, 
supra. 


CORPORATION    OFFICERS.  515 

binds  it,  notwithstanding  'hat  the  statute  required  a  vote  of 
the  trustees  for  the  purpose  of  a  valid  transfer  of  its  securi- 
ties.1 But  where  the  by-laws  of  a  corporation  require  in- 
dorsements for  it  to  be  made  by  the  secretary,  an  indorse- 
ment by  the  president  to  a  director  of  the  corporation 
chargeable  with  knowledge  of  such  by-laws  will  not  be 
binding  upon  it.2  The  maker  of  a  note  held  and  transferred 
by  a  corporation  cannot  object  to  the  informal  manner  of 
the  transfer,  where  the  statute  (as  in  a  case  requiring  a  pre- 
vious resolution  of  the  directors)  is  designed  manifestly  only 
for  the  protection  of  the  corporation  and  its  creditors.3 

The  best,  though  not  the  only,  evidence  of  authority  from 
a  corporation  to  its  agent  is  to  be  found  in  its  own  minutes 
and  other  records.4  But  evidence  that  an  agent  has  been 
acting  as  cashier  and  that  his  acts  as  such  in  duties  properly 
belonging  to  such  officer  have  been  recognized  by  resolution 
of  the  directors  may  be  sufficient  proof  of  his  official  posi- 
tion.5 And  where  one  acts  and  is  held  out  as  the  officer  of 
a  corporation  it  will  be  presumed  that  he  has  been  elected 
and  qualified  as  such.6 

§  368.  Corporation  Officers — President. — It  is  a  well  known 
rule  that  the  acts  of  a  corporation  agent  will  bind  the  corpo- 
ration within  their  official  scope.7     And  an  indorsement  by 

'Creswell  v.  Lanahan,  11  Otto  347  (1879). 

2Leavitt  v.  Connecticut  Peat  Co  ,  6  Blatch.  139  (1868). 

3EI\vell  v.  Dodge,  33  Barb.  336  (1861). 

*Owinga  v.  Speed,  5  Wheat  420  (1820);  Clark  v  Farmers  Manuf.  Co.,  15 
Wend.  256  (1836);  Thayer  v.  Middlesex  Mat.  Fire  Ins.  Co.,  10  Pick.  326 
(1830) ;  Narragansett  Bank  v.  Atlantic  Silk  Co.,  3  Met.  286  (1841).  But  such 
proof  is  not  necessary,  Topping  v.  Bickford,  4  Allen  120  (1862);  Bank  of 
United  States  v.  Dandridge,  12  Wheat.  64  (1827),  so  holding  as  to  proof  of 
approval  of  a  cashier's  official  bond. 

5Barrington  v  Bank  of  Washington,  14  Serg.  &  R.  405,  421  (1826).  See, 
too,  Baldwin  v.  Bank  of  Newbury,  1  How.  234  (1863). 

"Narragansett  Bank  v.  Atlantic  Silk  Co.,  3  Met.  282,  289(1841).  And 
where  his  election  has  been  irregular,  the  company  will  still  be  bound  by  its 
recognition  of  his  acts  as  treasurer,  Partridge  v.  Badger,  2-5  Barb.  146  (1857 

'Merchants'  Bank  v.  State  Bank,  10  Wall.  604,  644  (1870) ;  Commissioners 
of  Knox  Co.  v.  Aspinwall,  21  How.  539  (1858);  Moran  v.  Commissioners  of 
Miami  Co.,  2  Black  722  (1862) ;  Commonwealth  v.  Select  Councils  of  Pitts- 
burgh, 34  Penna.  St.  495,519(1859);  Commonwealth  v.  Commissioners  of 
Allegheny  Co.,  37  Penna.  St.  275,  287  (1860) ;  Elwell  v.  Dodge,  33  Barb.  336 
(1861).     And  it  is  not  necessary  that  the  agent's  act  be  performed  at  the  com- 


5t6  CAPACITY PRINCIPAL    AND    AGENT. 

an  officer  of  a  corporation  is  prima  facie  the  act  of  the  cor- 
poration.1 An  officer,  however,  who  has  no  connection  with 
the  business  of  the  corporation  has  no  authority  to  give  a 
bill  or  note  for  it.2 

It  has  even  been  held  that  the  president  of  a  corporation 
has  no  implied  authority  to  bind  it  by  a  contract.3  But  the 
directors  of  a  banking  company  may  authorize  an  agent  by 
power  of  attorney  to  transfer  a  note  belonging  to  the  com- 
pany.4 So,  they  may  authorize  the  president  and  cashier  to 
borrow  money  and  give  drafts  for  it  in  the  company's  name.6 
And  it  has  been  held  that  the  members  of  a  Masonic  lodge 
may  authorize  their  presiding  officer  to  bind  it  by  a  note.6 
So,  a  note  or  acceptance  given  by  the  president  of  a  bank, 
who  is  also  its  general  agent  and  manager,  with  the  knowl- 
edge and  approval  of  the  directors,  will  bind  the  bank.7 

And,  in  general,  by  virtue  of  their  office,  presidents  and 
cashiers  of  incorporated  companies  have  power  to  indorse 
and  transfer  negotiable  paper  belonging  to  such  company.8 
A  president  may  bind  his  company  by  indorsement  of  such 
paper.9  And  he  may  transfer  such  paper  without  express 
authority.10  So,  too,  such  authority  may  be  presumed  from 
its  recognition  on  the  face  of  a  note  itself,  as  in  the  case  of  a 
note  made  payable  to  the  president  as  such.11     And  even  an 

pany's  office,  Merchants'  Bank  v.  State  Bank,  supra;  Bissell  v.  First  Nat. 
Bank,  69  Penna.  St.  415;  Pendleton  v.  Bank  of  Kentucky,  1  T.  B.  Mon.  171. 

^rye  v.  Tucker,  24  III.  180  (1860). 

2Ehrgott  v.  Bridge  Mfy.,  16  Kans.  486  (1876). 

3 Mount  Sterling,  &c,  Turnpike  Co.  v.  Looney,  1  Mete.  550  (Ky.  1858). 

♦Northampton  Bank  v.  Pepoon,  11  Mass.  288  (1814).  And  a  blank  indorse- 
ment by  such  attorney  is  sufficient,  lb. 

5Ridge\vay  v.  Farmers'  Bank  of  Bucks  Co.,  12  Serg.  &  R.  256  (1824). 

6 Ferris  v.  Thaw,  5  Mo.  App.  279  (1878),  72  Mo.  446  (1880). 

7Libby  v.  Union  National  Bank,  99  111.  622  (1881). 

8State  Bank  of  Ohio  v.  Fox,  3  Blatch.  431  (1856). 

9Topping  v.  Bickford,  4  Allen  120  (1862) ;  Palmer  v.  Nassau  Bank,  78  111. 
380  (1875) ;  Irwin  v.  Bailey,  8  Biss.  523  (1879).  See,  too,  Elwell  v.  Dodge,  33 
Barb.  336  (1861).  But  he  cannot  bind  the  company  by  an  accommodation 
indorsement,  iEtna  Nat.  Bank  v.  Charter  Oak  Ins.  Co.,  50  Conn.  167  (1882). 

10Aspinwall  v.  Meyer,  2  Sandf.  180  (1S48).  And  the  maker  of  a  note  can- 
not question  the  payee's  capacity  as  a  corporation  to  transfer  it,  especially 
at  suit  of  a  holder  for  value,  lb. 

"Nichols  v.  Frothinghani,  45  Me.  220  (1858). 


CORPORATION    OFFICERS.  517 

indorsement  by  the  ex-president  of  a  corporation  of  a  note 
payable  to  the  company  will  be  sufficient,  where  the  proceeds 
of  the  transfer  have  gone  to  the  company.1  And,  a  fortiori, 
the  indorsement  by  the  president  of  a  note  payable  to  his 
order  as  such  will  transfer  the  company's  interest  in  the 
note,  where  the  indorsement  has  been  expressly  authorized 
by  a  vote  of  the  board  of  directors.2 

§  369.  But  the  president  of  a  company  has  no  power  to 
surrender  its  rights  or  assets  without  express  authority.  He 
cannot,  for  instance,  bind  the  company  by  an  agreement  to 
give  up  a  note  belonging  to  it  in  consideration  of  bank  stock 
sold  by  the  maker  of  the  note  to  him.3  Nor,  it  seems,  can 
he  give  a  receipt  to  the  maker  of  a  note,  which  belongs  to 
the  company,  showing  the  note  to  be  a  mere  voucher  or 
memorandum.4  Although  the  cashier  of  a  bank  is  the 
proper  officer  to  transfer  or  accept  negotiable  paper  for  it, 
the  president  may,  by  force  of  usage,  in  the  absence  of  the 
cashier  and  while  his  place  is  supplied  by  a  temporary 
cashier,  bind  the  bank  by  an  indorsement  or  by  signing  a 
draft  or  check.5  The  general  authority,  however,  which  a 
president  may  possess  to  bind  the  bank  by  certifying  a  check 
upon  it,  will  not  extend  to  checks  -drawn  individually  by 
himself.6  When  the  management  of  a  corporation  is  ex- 
pressly lodged  by  its  charter  in  a  board  of  directors,  the 
president  and  cashier  have  no  power,  without  express  author- 
ity from  such  directors,  to  transfer  its  assets  to  a  creditor  as 
security  for  its  debts.7 

The  president  of  a  manufacturing  corporation  has  no 
authority,  it  has  been  held,  even  to  commence  an  action  in 
the  name  of  the  company.8     And  where  a  solicitor,  retained 

'Patten  v.  Moses,  49  Me.  255  (1861). 
2  Spear  v.  Ladd,  11  Mass.  94  (1814). 
'Rhodes  v.  Webb,  24  Minn.  292  (1877). 

*  Ib.dge  v.  First  National  Bank  of  Richmond,  22  Gratt.  51  (1872). 
'Neiflter  v.  Bank  of  Knoxville,  1  Head  162  (1858). 
■Claflin  v.  Farmers'  and  Citizens'  Bank,  25  N.  Y.  293  (1862). 
'Hoyt  v.  Thompson,  5  N.  Y.  320  (1851).     Nor  can  they  use  the  corporate 
-seal  without  authority  of  the  directors,  lb. 

■Ashuelot  Manuf.  Co.  v.  Marsh,  1  Cush.  507  (1848). 


518  CAPACITY PRINCIPAL    AND    AGENT. 

by  him  without  such  authority,  has  acted  in  the  company's; 
name  so  as  to  bind  it,  the  president  will  be  responsible  to  the 
company  for  damages.1  But  after  the  services  have  been 
rendered  by  an  attorney  to  a  bank  under  such  a  retainer,, 
the  directors  cannot  set  up  their  disapproval  of  the  proceed- 
ings in  defense  of  the  company's  liability  for  fees.2  And 
where  the  president  of  a  company  was  a  member  of  its- 
finance  committee,  and  had  with  the  cashier  employed  a 
solicitor  to  carry  on  legal  proceedings,  and  had  attended 
examinations  had  in  such  j)roceedings,  it  has  been  held  to 
be  conclusive  evidence  of  authority  on  the  part  of  the  cor- 
poration.3 But  it  would  not  in  such  a  case  be  liable  for  the 
services  of  a  co-defendant's  solicitor,  although  such  services 
were  beneficial  to  the  company.4 

In  like  manner,  the  president  of  a  bank  has  no  authority  to 
stay  the  collection  of  an  execution  against  one  of  its  debtors.5 
So,  where  an  insurance  company  has  received  notes  for 
advance  premiums,  it's  president  has  no  authority  to  surren- 
der such  notes.6  Nor,  it  seems,  can  the  president  agree  witli 
an  indorser  of  paper  held  by  the  bank  that  he  shall  not  be 
liable  on  his  indorsement.7  So,  the  president  of  a  bank  can- 
not settle  and  release  claims  of  the  company  against  his 
official  predecessor  without  authority  expressed  or  plainly 
implied.8  So,  where  a  note  has  been  made  by  a  bank  to  its 
president  and  indorsed  to  another  bank  having  the  same 
president,  he  has  no  authority  to  bind  the  first  bank  by  an 
agreement  that  the  note  shall  be  paid  out  of  its  fund.9 

§  370.  Cashier. — The  cashier  of  a  bank  is,  in  general,  the 

American  Ins.  Co.  v.  Oakley,  9  Paige  496  (1842). 
*Mumford  v.  Hawkins,  5  Den.  355  (1848). 
"Mumford  v.  Hawkins,  5  Den.  355  (1848). 

'Savings  Bank  of  Cincinnati  v.  Benton,  2  Mete.  240  (Ky.  1859). 
5Spyker  v.  Spence,  8  Ala.  333  (1845). 
6Brou\ver  v.  Appleby,  1  Sandf.  158  (1847). 

7 Bank  of  Metropolis  v.  Jones,  8  Pet.  12  (1834)  ;  Bank  of  United  States  v. 
Dunn,  6  lb.  51  (1832) ;  Gallery  v.  National  Exch.  Bank,  41  Mich.  169  (1879). 
801ney  v.  Chadsey,  7  R.  I.  224  (1S62). 
"Gallery  v.  National  Exch.  Bank,  41  Mich.  169  (1879). 


CASHIER.  519 

proper  officer  to  execute  a  bill  of  exchange  for  it,1  or  a  prom- 
issory note.2  And  a  note  given  by  the  cashier  to  the  presi- 
dent for  payment  of  his  salary  and  other  consideration  is 
not  within  the  statute  requiring  notes  issued  for  circulation 
as  money  to  be  signed  both  by  the  president  and  cashier.3 
So,  the  cashier  of  a  bank  has  power  to  bind  it  by  his  certifi- 
cate of  deposit,4  or  by  certifying  checks  drawn  upon  it.5 
And  even  if  he  has  certified  such  check  where  the  drawer 
has  no  funds  to  meet  it,  the  bank  will  be  liable  to  a  bona  fide 
holder.6  The  cashier  of  a  bank  is  also  the  proper  agent  to 
indorse  or  accept  commercial  paper  for  it.7  But  he  has  no 
power  to  give  accommodation  indorsements  in  its  name,3  or 
to  indorse  in  its  name  a  note  which  has  been  made  payable 
to  it  but  has  been  discounted  by  some  other  party.9 

1Saflford  v.  Wyckoff,  4  Hill  442;  or  a  check,  Northern  Bank  v.  Johnson,  5 
Cnldw.  88.  As  to  the  power  of  bank  cashiers,  see  also  an  article  in  20  Cent. 
L.  J.  126  (Feb.  13th,  1885),  citing  many  American  authorities. 

2Ballston  Spa  Bank  v.  Marine  Bank,  16  Wis.  120  (1862);  Rockwell  v. 
Elkhorn  Bank,  13  lb.  731. 

3 Rockwell  v.  Elkhorn  Bank,  13  Wis.  731  (1861). 

4 Barnes  v.  Ontario  Bank,  19  N.  Y.  156  (1859) ;  State  Bank  v.  Kain,  Breese 
75  (1823). 

5 Merchants'  Bank  v.  State  Bank,  10  Wall.  649  (1870). 

6Cooke  v.  State  Nat.  Bank  of  Boston,  52  N.  Y.96  (1873),  affirming  1  Lans. 
494. 

'United  States  Bank  v.  Fleckner,  8  Mart.  309  (1820);  Fleckner  v.  United 
States  Bank,  8  Wheat.  338,355(1823);  State  Bank  v.  Fox,  3  Blatchf.  433 
(1856);  Potter  v.  Merchants'  Bank,  28  N.  Y.  641  (1864);  Bank  of  the  State 
of  N.  Y.  v.  Farmers'  Branch.  29  N.  Y.  619  (1864),  affirming  36  Barb.  332; 
Folger  v.  Chase,  18  Pick.  63  (1836) ;  Bnrnham  v.  Webster,  lit  Me.  232  (1841) ; 
Farmers',  &c.,  Bank  v.  Troy  City  Bank,  1  Doug.  457  (Mich.  1844);  Wild  v.  Bank 
of  Passamaquoddy,  3  Mason  505  (1825) :  Coraer  v.  Paul,  41  N.  H.  24  (1860); 
Houghton  v.  First  Nat.  Bank,  26  Wis.  663  (1870) ;  Lafavette  Bank  v.  State 
Bank,  4  McLean  208  (1S47);  Robb  v.  Ross  County  Bank,  41  Barb  591  (1864); 
Hartford  Bank  v.  Barrv,  17  Mass.  93  (1821);  Kimball  v.  Cleveland,  4  Mich. 
606(1857);  Everett  v.  United  States.  6  Port.  166(1837);  Harperw  Calhoun, 
7  How.  203  (Miss  1843) ;  Cooper  v.  Curtis,  30  Me.  488  (1849) ;  Smith  v.  Law- 
son,  18  W.  Va.  212;  Lanning  ».  Lockett,  10  Fed.  Rep.  451  (1882);  Blair  v. 
First  Nat.  Bank.  2  Flip.  Ill  (1877).  In  Bank  of  State  of  N.  Y.  v.  Farmers' 
Bank,  supra, .n.  distinction  was  made  between  an  indorsement  for  transfer  or 
collection  and  an  indorsement  "for  the  purpose  of  making  the  bank  liable 
on  a  contract  of  indorsement,"  and  the  latter  was  spoken  of  as  not  lying 
within  the  cashier's  authority.  This  distinction  is,  however,  not  a  sound 
one  and  the  decision  has  been  overruled  on  another  point,  Robb  v.  Ross 
County  Bank,  41  Barb.  593  (1864).  The  cashier's  power  to  accept  a  bill  for 
the  bank  was  questioned  in  Pendleton  v.  Bank  of  Kentucky,  1  T.  B.  Mon. 
180  (1824). 

8 West  St.  Louis  Bank  v.  Shawnee  Bank,  5  Otto  557  (1877).  But  see 
Houghton  v.  First  Nat.  Bank,  26  Wis.  663  (1870). 

'Elliot  v.  Abbot,  12  N.  H.  557  (1842-). 


520  CAPACITY PRINCIPAL    AND    AGENT. 

The  cashier  of  a  bank  is  the  proper  officer  to  forward  its 
notes  for  collection.1  A  bank  may  authorize  its  cashier  to 
transfer  notes  and  other  security  belonging  to  it  in  payment 
of  its  debts.2  And,  in  general,  authority  to  make  such  trans- 
fer is  implied  from  his  official  character.3  Purchasing  gold 
has  been  held  to  be  within  the  general  powers  of  a  bank 
cashier.4  So,  he  may  sell  a  bill  of  exchange  and  bind  the 
bank  by  a  warranty  that  it  is  "  perfectly  safe."0  But  he  has 
no  power  to  transfer  a  non-negotiable  note  belonging  to  the 
bank,6  or  to  assign  a  judgment  rendered  in  its  favor.7  His 
authority  to  pledge  negotiable  securities  held  by  the  bank 
under  a  written  agreement  made  by  him  as  cashier  for  ad- 
vances will  be  presumed,  where  he  has  frequently  transacted 
such  business  for  his  bank.8 

A  bank  may  also  be  bound  by  way  of  estoppel  by  repre- 
sentations made  by  a  cashier  to  the  sureties  on  a  note  held 
by  it  inducing  them  to  believe  it  paid  and  therefore  to  give 
up  collaterals  held  by  them.9  But  it  seems  that  this  is  not 
so,  where  the  surety  is  a  director  of  the  bank  and  has  means 
of  ascertaining  the  truth  of  the  statement  for  himself.10  The 
cashier  cannot  bind  the  bank  by  a  promise  to  refund  moneys 
paid  to  it  on  a  forged  certificate  of  deposit  from  another 
bank.11  If,  however,  notes  have  been  placed  in  a  bank  on 
special  deposit  and  exchanged  by  the  cashier  for  other  securi- 
ties and  indorsed  by  him  for  the  purpose  of  such  exchange, 

1  Biirnham  v.  Webster,  19  Me.  232  (1841). 

2 Crockett  v.  Young,  1  Sm.  &  M.  241  (1843). 

'Everett  v.  United  States,  6  Port.  166  (1837) ;  Farrar  v.  Oilman,  19  Me.  440 
(1841) ;  Harper  v.  Calhoun,  7  How.  203  (Miss.  1843) ;  Hartford  Bank  v.  Barry. 
17  Mass.  93  (1821);  City  Bank  of  New  Haven  v.  Perkins,  29  N.  Y.  554 
(1864). 

4  Merchants'  Bank  v.  State  Bank,  10  Wall.  649  (1870). 

5Sturges  v.  Bank  of  Circleville,  11  Ohio  St.  156  (1S60). 

6Barrick  v.  Austin,  21  Barb.  241  (1S55). 

7  Holt  v.  Bacon,  25  Miss.  567  (1853). 

"Mercantile  Bank  v.  McCarthy,  7  Mo.  App.  318  (1879J. 

9Cocheco  Nat.  Bank  v.  Haskell,  51  N.  H.  116  (1871) ;  Merchants'  Bank  v, 
Rudolph,  5  Neb.  527  (1877) ;  Grant  v.  Cropsey,  8  Neb.  205  (1879). 

10Mercbants'  Bank  v.  Rudolph,  5  Neb.  527  (1877). 

"Merchants'  Bank  v.  Marine  Bank,  3  Gill  96  (1S45). 


OTHER  OFFICERS.  521 

the  bank  will  be  liable  to  its  depositor  for  such  act.1  So, 
notice  to  a  cashier  that  a  draft  will  not  be  paid  is  notice  to 
the  bank,  although  the  cashier  may  have  had  no  power  to 
discount  notes  for  the  bank.2 

§  371.  Other  Officers — Teller — Secretary — Treasurer. — An 
assistant  cashier  cannot  bind  the  bank  without  authority  by 
accepting  a  post-dated  check.3  But  it  has  been  held  that  a 
check  may  be  certified  by  the  teller  so  as  to  bind  the  bank.4 
And  the  bank  will  be  liable  on  such  certification,  although 
the  checks  were  not  drawn  against  funds  in  bank  and  the 
teller  had  no  authority  to  certify  them.5 

The  business  of  a  paying  teller  not  extending  to  the  receipt 
of  money  in  a  bank  having  also  a  cashier  and  a  receiving 
teller,  the  bank  will  not  be  liable  in  an  action  by  the  drawer 
of  a  bill  payable  at  the  bank,  on  the  ground  that  funds  were 
left  for  its  payment  with  the  paying  teller,  although  such 
teller  had  been  known  to  receive  money  in  a  few  instances 
for  such  purpose  and  the  bank  had  not  forbidden  it.6  But 
where  a  depositor  has  overdrawn  his  account,  and  upon  no- 
tice to  that  effect  from  the  paying  teller,  with  a  request  to 
call  and  make  his  account  good,  makes  payment  for  that  pur- 
pose to  the  paying  teller  at  the  bank,  in  the  absence  of  the 
receiving  teller,  without  knowledge  that  receiving  such  pay- 
ment is  not  within  the  limits  of  the  paying  teller's  authority, 
the  bank  will  be  bound  by  the  receipt  of  the  money,  as 
though  paid  to  the  proper  officer.7     The  teller  of  a  bank  has 

•Lloyd  v.  West  Branch  Bank,  15  Penna.  St.  172  (1850). 

2Boggs  v.  Lancaster  Bank,  7  Watts  &  S.  331  (1844). 

3  Pope  v.  Bank  of  Albion,  57  N.  Y.  126  (1874). 

*  Meads  v.  Merchants'  Bank,  25  N.  Y.  145  (1862).  And  he  may  bind  the 
bank  by  a  statement  that  his  signature  to  such  certificate  was  all  right, 
when  the  signature  was  a  forgery,  Continental  Nat.  Bank  v.  Nat.  Bank  of 
the  Commonwealth,  50  N.  Y.  575  (1872).  But  his  representation  that  a 
check  is  "good"  extends  only  to  funds  and  signature  of  drawer  and  will 
not  bind  the  bank  where  the  check  has  been  altered  by  raising  the  amount, 
Espy  v.  Bank  of  Cincinnati,  18  Wall.  604  (1873). 

farmers'  Bank  v.  Butchers'  Bank,  14  N.  Y.  623  (1856) ;  affirmed  16  N.  Y 
125  (1857). 

"Thatcher  v.  Bank  of  State  of  New  York,  5  Sandf.  121  (1851). 

'East  River  Nat.  Bank  v.  Gove,  57  N.  Y.  597  (1874). 


522  CAPACITY — PRINCIPAL   AND    AGENT. 

no  authority,  however,  to  bind  it  by  a  statement  as  to  the- 
genuineness  of  an  indorsement.1 

The  official  acts  of  the  treasurer  of  a  corporation  within 
the  scope  of  his  official  duties  bind  the  company  in  a  like 
manner.  Thus,  the  company  will  be  liable  for  stock  issued 
by  him  although  fraudulently  issued.2  But  the  agent  of  a 
company,  whose  business  and  authority  relate  only  to  the 
payment  of  its  bills,  cannot  bind  it  by  giving  a  promissory 
note  for  such  payment.3  So,  the  treasurer  of  a  savings  bank 
has  no  authority  to  bind  it  by  indorsing  a  note  in  its  name.* 
"Where,  however,  an  acceptance  of  a  draft  is  within  the  scope 
of  the  treasurer's  authority,  it  will  bind  the  company.5  And 
power  on  his  part  to  indorse  for  the  company  may  be  implied 
from  his  acting  as  general  manager.6 

The  secretary  of  a  company  has  not  generally  power  to 
bind  it  by  contracts;7  or  to  give  a  draft  in  its  name.8  Nor 
can  the  general  managing  agent  of  a  company,  it  has  been 
held,  bind  it  by  a  note.9  Neither  can  its  business  manager.10 
So,  the  pastor  and  deacons  of  a  church  are  not  authorized  as 
agents  to  give  a  note  for  the  corporation.11 

§  372.  Municipal  Officers. — The  power  of  municipal  cor- 
porations to  execute  commercial  paper  has  been  already  dis- 
cussed. It  remains  for  us  to  consider  here  the  authority  of 
its  officers  to  bind  it  by  such  paper.  Where  the  power  exists, 
parish  officers  have  no  authority  to  exercise  it  incident  to 

I  Walker  v.  St.  Louis  Nat.  Bank,  5  Mo.  App.  214  (1878). 
2 Tome  v.  Parkersburg  Branch  R.  R.,  39  Mil.  36  (1873). 

3Torry  v.  Dustin  Mont.  Association,  5  Allen  327  (1862).  Bat  if  such  is  the 
company's  custom  and  the  proceeds  were  received  by  it,  it  will  be  bound, 
Foster  v.  Ohio,  &c,  Mining  Co.,  17  Fed.  Rep.  130  (1883). 

*Brandlee  v.  Warren  Five  Cents  Savings  Bank,  127  Mass.  107  (1879). 

Cartridge  v.  Badger,  25  Barb.  146  (1857). 

"Chase  v.  Hathorn,  61  Me.  505  (1873). 

7Chitty  37;  Neale  v.  Turto'n,  4  Bing.  149. 

8 First  Nat.  Bank  v.  Hogan,  47  Mo.  472  (1871).  Nor  can  he  assign  a  prom- 
issory note  belonging  to  the  corporation,  Blood  v.  Marcuse,  38  Cal.  590 
(1869). 

9N.  Y.  Iron  Mine  v.  Negaunee  Bank,  39  Mich.  644  (1878). 

,0Cuiver  v.  Leovy,  19  La.  An.  202  (1867). 

II  Jefts  v.  York,  10  Cush.  392  (1852) ;  Jefts  v.  York,  4  Cash.  371  (1849). 


MUNICIPAL   OFFICEES.  52o 

their  authority  to  levy  taxes.1  Neither  have  township  trust- 
ees;2 nor  a  board  of  supervisors;3  nor  the  selectmen  of  the 
town.4  So,  a  township  committee,  appointed  to  lay  out  a  high- 
way, cannot  bind  the  town  by  a  note.5  So,  a  county  judge 
cannot  bind  the  county  by  negotiable  bonds  given  for  the 
building;  of  the  county  court  house.6  An  auditor  for  building- 
public  works  in  Washington,  D.  C,  cannot  give  negotiable 
certificates  of  indebtedness  to  bind  the  corporation.7  But  in 
Indiana  the  directors  of  an  incorporated  school  district,  it 
seems,  may  bind  it  by  giving  their  note  for  school  purposes.8 
So,  where  a  note  has  been  given  to  a  township  trustee,  he  may 
bind  the  township  by  an  agreement  for  forbearance  or  settle- 
ment.9 It  has  been  held,  too,  that  the  elected  commissioners 
of  a  county  are  its  proper  agents  to  subscribe  bonds  which 
have  been  expressly  authorized  by  statute;10  and  that  a  note 
made  to  a  county  may  be  assigned  by  order  of  court  by  the 
county  clerk.11  And  where  the  mayor  of  a  city  is  designated 
by  a  city  ordinance  to  subscribe  in  its  name  for  railroad  stock 
and  execute  city  bonds  in  payment,  his  authority  to  deter- 
mine whether  the  preliminary  conditions  have  been  complied 
with  must  be  presumed  from  the  nature  of  his  agency,  so  far 
as  regards  purchasers.12 

The  ordinary  rules  of  majority  and  quorum  govern  the 
action  of  corporate  bodies.     But  it  has  been  held  in  Ohio 

'Police  Jury  v.  Britton,  15  Wall.  566  (1872);  Citizens  Bank  v.  Police  Jury 
of  Parish  of  Concordia,  28  La.  An.  263  (1876).  And  authority  to  issue 
county  orders  confers  no  power  on  the  county  officers  to  issue  negotiable 
paper  for  the  county,  People  v.  Johnson,  100  111.  537  (1881). 

'Inhabitants,  &c,  v.  Weir,  9  Ind.  224  (1857). 

"Supervisors  of  Rensselaer  Co.  v.  Weed,  35  Barb.  136  (1861). 

*Eaton  v.  Berlin,  49  N.  II.  219  (1870).  But  see  Andover  v.  Grafton,  7  N. 
H.  294  (1834),  where  it  was  held  that  the  selectmen  had  such  power  but  that 
one  of  them  could  not  bind  the  town  by  such  a  note. 

BSavage  v.  Rix,  9  N.  H.  263  (1838). 

6Hull  v.  County  of  Marshall,  12  Iowa  142  (1861). 

'Ballard  Pavement  Co.  v.  Mandel,  2  MacArth.  351  (1876). 

8 Baker  v.  Chambles,  4  G.  Greene  428  (1S54). 

"Philips  v.  East,  16  Ind.  254  (1861). 

10 Commonwealth,  ex  rel.  Armstrong,  v.  Commissioners  of  Allegheny  Co., 
37  Penna.  St.  275,  283  (1860). 

"Gatton  v.  Dimmitt,  27  111.  400  (1862). 

"Commonwealth  v.  Select  Councils  of  Pittsburgh,  34  Penna.  St.  496  (1859). 


524  CAPACITY — PRINCIPAL    AND    AGENT. 

that  a  board  of  education,  which  is  itself  a  corporation,  can- 
not in  the  absence  of  express  authority  be  bound  by  the  con- 
tract of  a  mere  majority  of  its  members.1 

§  373.  Authority  Implied  from  Blanks. — As  has  been  al- 
ready said,  where  a  person  executes  notes  or  other  negotiable 
instruments  in  blank  and  delivers  the  paper  in  that  condi- 
tion, he  makes  the  holder  his  agent  to  fill  in  such  blank. 
And  a  blank  note  given  by  an  agent  in  his  principal's  name 
will  bind  the  principal  in  like  manner.2  The  indorsement 
of  a  note  in  blank  is  said  to  be  a  letter  of  credit  for  an 
indefinite  sum,  and  the  giver  of  such  paper  will  be  liable  to 
a  bona  fide  holder  for  whatever  sum  may  be  written  in  the 
blank.3  If  the  amount  is  stated  in  the  margin  in  figures,  it 
will  be  sufficient  authority  to  the  holder  to  fill  up  the  bill  or 
note  for  that  amount  and  for  no  more.4  If  such  paper  is  not 
given  for  value,  the  authority,  as  in  other  cases  of  agency, 
will  be  revoked  by  the  death  of  the  principal.5  But  where 
a  blank  acceptance  is  given  for  value,  the  blank  may  be  filled 
in  after  the  acceptor's  death.6 

It  has  been  held  that  a  guaranty  may  be  written  by  an 
indorsee  over  a  blank  indorsement,  if  such  was  the  indorser's 
intention,  and  that  such  intention  may  be  shown  by  parol.7 
And  it  has  been  held  that  parol  evidence  is  admissible  to 
show  that  a  blank  indorsement  was  given  by  the  indorser  to 
the  holder  merely  as  a  receipt  or  voucher  on  payment  of  the 
note  by  him  as  the  maker's  agent.8     As  to  the  effect  of  in- 

'Ohio  v.  Treasurer  of  Liberty  Township,  22  Ohio  St.  144  (1871).  In  this 
case,  however,  the  warrant  given  by  it  failed  for  want  of  a  valid  consider- 
ation. 

*  Lambert  v.  Carroll,  Wright  108  (Ohio  1832). 

3Cruchley  v.  Clarence,  2  M.  &  S.  90;  Schultz  v.  Astley,  2  Bing.  N.  C. 
514. 

4Clute  v.  Small,  17  Wend.  238  (1837). 

6 Hatch  v.  Searles,  2  Sm.  &  GifF.  147  (1854). 

6So  held  as  to  drawer's  name  left  blank,  Carter  v.  White,  L.  R.  Ch.  D.  225 
(1882).  Under  such  circumstances,  as  in  the  case  of  an  indorsement  in  blank, 
the  authority  to  fill  the  blank  is  irrevocable,  Cope  v.  Daniel,  9  Dana  415. 

7  Levi  v.  Wendell,  1  Duv.  77  (1863) ;  Ulen  v.  Kittredge,  7  Mass.  233  (1810). 

"Davis  v.  Morgan,  64  N.  C.  570  (1870);  Andover  v.  Grafton,  7  N.  H.  298 
<1834). 


RATIFICATION.  O'lO- 

dorsements  in  blank  and  the  extent  of  authority  implied  by 
them,  as  also  for  further  consideration  of  the  admissibility 
of  parol  evidence  to  show  the  intention  and  meaning  of  such 
indorsements,  the  reader  is  referred  to  another  part  of  this 
work. 

§  374.  Ratification — General  Principles. — If  an  agent  as- 
sumed to  act  as  such  in  executing  commercial  paper,  the 
subsequent  ratification  of  his  act  by  the  principal  will  be 
equivalent  to  an  original  authority  for  it.1  This  will  apply 
to  the  indorsement  of  a  receipt  for  the  payment  of  interest  so 
as  to  take  the  liability  of  an  accommodation  indorser  out  of 
the  statute  of  limitations.2  But  a  ratification  must  be  made 
with  full  knowledge  on  the  principal's  part  of  all  circum- 
stances affecting  his  right  in  the  matter.3  With  such  knowl- 
edge it  relates  back  to  the  time  the  paper  was  executed  and 
requires  no  new  consideration.4  And  it  has  been  held  that 
where  an  agent  sold  goods  with  a  warranty,  under  an  author- 
ity originally  sufficient  but  after  the  expiration  of  his  agency, 
and  took  and  turned  over  to  his  successor  a  note  in  payment 
for  the  goods,  such  successor  having  no  authority  to  give  a 
warranty  and  having  forwarded  the  note  to  his  principal 
without  informing  him  by  whom  the  sale  had  been  made, 
the  acceptance  of  the  note  by  the  principal  and  his  attempt 
to  collect  it  will  still  amount  to  a  ratification  both  of  the  sale 
and  warranty.6 

The  unauthorized  act  of  the  agent  of  a  corporation  may 

^yles  53;  Chitty  42;  1  Daniel  295;  1  Parsons  101;  Saunderson  v.  Griffiths, 
5  B.  &  C.  909;  S.  C,  D.  &  Rv.  613;  Ward  v.  Evans,  Ld.  Ravin.  930;  8.  C,  2 
Salk.  442;  Vere  v.  Ashby,  10  B  &  C.  288;  Wilson  v.  Tummon,  6  Man.  &  G. 
236;  Ancona  v.  Marks,  7  H.  &  N.  686  ;  Fenn  v.  Harrison,  3  l\  R.  757  ;  How- 
ard v.  Baillie,  2  H.  Bl.  618;  Bigelow  v.  Denison,  23  Vt.  564  (1851)  ;  Foreythe 
v.  Bonta,  5  Bush  547  (1869) :  Hatch  v.  Taylor,  10  N.  H.  538  (1840) ;  Lysle  v. 
Beals,  27  La.  An.  274  (1875).  But  the  person  ratified  must  have  acted  pro- 
fessedly as  agent,  Crowder  v.  Reed,  80  Ind.  1  (1881). 

2 First  Nat.  Bank  v.  Ballon,  49  N.  Y.  155  (1872). 

s Nixon  v.  Palmer,  8  N.  Y.  398  (1853) ;  First  Nat.  Bank  v.  Gay,  63  Mo.  33 
(1876). 

4 First  Nat.  Bank  v.  Gay,  63  Mo.  33  (1876).  And  it  seems  that  even  a 
forged  signature  may  be  ratified  without  new  consideration,  Dow  v.  Spurney, 
29  Mo.  386;  Greenfield  Bank  v.  Crofts,  4  Allen  477  (1862). 

5Eadie  v.  Ashbaugh,  44  Iowa  519  (1878). 


526  CAPACITY PRINCIPAL   AND    AGENT. 

also  be  ratified.1  But  an  act  which  is  ultra  vires  cannot  be 
ratified.2  Where,  however,  the  charter  of  a  corporation  pro- 
vides for  the  exercise  of  its  powers  by  a  board  of  directors, 
a  transfer  of  the  company's  assets  by  a  quorum  of  five  direct- 
ors (under  a  by-law  declaring  that  the  "  ordinary  business  " 
of  the  corporation  may  be  transacted  by  such  quorum)  may 
be  ratified  by  the  corporation  which  has  had  the  benefit  of 
the  act,  and  such  ratification  will  bind  the  company.3 

But  after  the  principal's  own  power  to  make  a  contract  has 
expired,  he  cannot  ratify  the  previous  unauthorized  contract 
of  his  agent.4  Nor  does  the  payment  of  one  bill  of  exchange 
imply  or  involve  the  ratification  of  a  second.5  And  it  is  to  be 
observed  that  the  principal's  subsequent  ratification  of  an 
unauthorized  contract  will  not  relieve  the  agent  from  the 
personal  liability  which  he  may  have  incurred  by  executing 
it.6  It  has  been  said,  too,  that  the  doctrine  of  ratification  by 
a  principal  cannot  be  extended  to  the  case  of  a  forgery  of 
his  name.7 

§  375.  Ratification — What  Acts  Amount  to. — Where  the 
agent  of  a  corporation  gave  a  draft,  of  which  the  proceeds 
were  used  for  the  benefit  of  the  company,  its  silence  as  to 
this  draft  with  previous  recognition  of  similar  acts  has  been 
construed  to  amount  to  a  ratification.8  Where  the  agent  of 
a  firm  had  authority  to  make  advances  for  the  purchase  of 

'Episcopal  Charitable  Soc.  v.  Episcopal  Church,  1  Pick.  372  (1823) ;  Hoyt 
v.  Thompson,  19  N.  Y.  207  (1859).  So,  too,  of  a  municipal  corporation, 
Peterson  v.  Mayor,  &c,  of  New  York,  17  N.  Y.  453  (1858). 

2McCracken  v.  City  of  San  Francisco,  16  Cal.  591  (1860);  Zottman  v.  San 
Francisco,  20  lb.  96  (1862). 

3  Hoyt  v.  Thompson,  19  N.  Y.  207  (1859). 

*Bird  v.  Brown,  14  Jur.  132  (1850),  where  the  principal  had  become  a 
bankrupt  before  the  ratification. 

5  Bank  of  Deer  Lodge  v.  Hope  Mining  Co.,  3  Montana  146  (1878). 

6Rossiter  v.  Rossiter,  8  Wend.  494  (1832). 

71  Edwards  §  83;  Marks  v.  King,  N.  Y.  S.  C.  1872,  6  Alb.  L.  J.  193.  But 
see  Dow  v.  SDurney,  29  Mo.  386;  Ferry  v.  Taylor,  33  lb.  323  (1863)  ;  Green- 
field Bank  v.'Crofts,  4  Allen  477  (1862).  An  acknowledgment  by  a  principal 
of  a  forged  signature  made  to  save  the  unauthorized  "  agent "  from  prosecu- 
tion for  forgery,  will  not  render  the  principal  liable  upon  the  bill,  Chitty  338; 
Ex  parte  Edwards,  5  Jurist  706. 

•Union  Mining  Co.  v.  Rocky  Mountain  Nat.  Bank,  2  Col.  248  (1873),  affirm- 
ing 1  lb.  532. 


RATIFICATION.  527 

notes  and  bills  to  be  remitted  to  the  firm,  and  his  authority 
had  ceased  by  a  change  in  the  firm  with  notice  to  him,  a  bill 
subsequently  purchased  by  him  and  sent  to  the  firm  will  be 
ratified  by  their  retention  and  use  of  it,  and  a  renewal  of 
authority  will  be  implied  which  will  be  binding  on  the  new 
firm.1  So,  the  cashier  of  a  bank  may  bind  it  by  notes  exe- 
cuted in  its  name  with  the  knowledge  of  the  directors;  and 
if  the  notes  were  originally  unauthorized  and  the  directors 
appropriate  the  proceeds  and  suffer  renewals  to  be  made,  it 
will  amount  to  a  ratification.2  So,  if  a  collecting  agent  sells 
without  authority  a  note  sent  him  for  collection  and  gives  his 
own  note  to  the  principal  for  it,  the  principal's  acceptance  of 
such  note  will  amount  to  a  ratification  of  the  sale.3  So,  if  the 
principal  named  as  maker  in  a  note  makes  a  part  payment  of 
the  note,  it  will  be  prima  facie  evidence  of  his  authority  for 
its  execution.4  This  is  true  of  a  sealed  note  also  executed  by 
an  agent  under  a  verbal  authority.5  So,  if  the  principal,  in 
a  letter  written  by  him,  speaks  of  the  note  as  his  and  prom- 
ises to  pay  it,  this  will  be  a  ratification.6 

And  it  has  been  held  that  where  a  son  bought  goods  and 
directed  that  they  should  be  charged  to  his  father,  and  the 
father,  when  afterwards  informed  of  it,  said  it  was  all  right 
and  he  would  pay  for  them,  this  was  a  ratification  of  the  son's 
act.7  This  is  true  also  of  similar  actions  on  the  principal's 
part  in  relation  to  a  note  executed  in  his  name  "  Per  Proc. 
A.  B."8  So,  if  the  principal  receive  and  retain  the  proceeds 
of  a  note  made  in  his  name,  and  acquiesce  in  the  act  wheu 
made  known  to  him  until  the  note  has  been  protested,  he 

•Callanan  v.  Van  Vleck,  36  Barb.  324  (1862). 

2Ballston  Spa  Bank  v.  Marine  Bank,  16  Wis.  120  (1862). 

'Cusliman  v.  Loker,  2  Mass.  106  (1806);   Turner  v.  Wilcox,  54  Ga.  593 
(187--,). 

*  Walter  v.  Trustees  of  Schools,  12  111.  63  (1850). 

5 Bates  v.  Best,  13  B.  Mori.  215  (1852). 

6Bigelow  v.  Denison,  23  Vt.  564  (1851). 

7  Booker  v.  Tally,  2  Humph.  308  (1841). 

8 Harper  v.  Devene,  10  La.  An.  724  (1855).     In  this  case  the  principal  also 
corrected  the  date  of  the  note. 


528  CAPACITY PRINCIPAL    AND    AGENT. 

will  be  held  to  have  ratified  it  and  will  be  liable  on  it.1  So,. 
if  the  agent  of  a  corporation  buys  property  and  gives  a  note 
for  it  in  the  company's  name,  the  company  will  ratify  the 
note  by  taking  possession  of  the  property.2  And  if,  on  the 
other  hand,  an  agent  takes  a  note  without  authority,  and  the 
principal  accepts  it  with  knowledge  of  the  circumstances,  he 
will  be  bound.3  So,  if  a  committee  of  a  common  council  has 
without  authority  caused  architects'  plans  and  drawings  to  be 
prepared  for  erecting  a  market,  a  subsequent  resolution  of 
the  common  council  adopting  the  plans  and  directing  the 
building  to  be  carried  on  according  to  them,  will  be  a  ratifi- 
cation.4 And  it  has  been  held  that  where  one  part  owner 
pf  a  vessel  insures  it  without  previous  authority  for  all  the 
owners,  they  may  ratify  his  act  even  after  they  obtain 
knowledge  of  the  loss  of  the  vessel.  And  their  bringing  an 
action  upon  the  policy  is  such  a  ratification.6 

§  376.  Ratification — By  Acquiescence. — A  ratification  may 
also  be  implied  from  the  silence  of  the  principal  after  becom- 
ing acquainted  with  the  facts.  Thus,  if  the  agent  receives 
and  indorses  a  note  in  his  principal's  name  for  goods  sold  or 
money  due  to  his  principal,  and  the  principal  fails  to  disclaim 
it  and  retains  the  proceeds,  although  he  knew  of  the  matter 
seventeen  days  before  the  maturity  of  the  note,  when,  too, 
the  maker  was  in  failing  circumstances,  he  will  be  held  to 
have  ratified  the  taking  and  indorsing  of  the  note.6  So, 
where  an  agent,  without  original  authority  to  give  a  note  for 

'Nat.  Bank  of  Orleans  v.  Fassett,  42  Vt.  432  (1869).  But  not  a  mere 
promise  to  pay,  with  no  acknowledgment  of  the  act  as  his,  Owsley  v.  Phil- 
lips, 78  Ky.  517  (1880). 

2  Moss  v.  Rossie  Lead  Mining  Co.,  5  Hill  137  (1843).  So,  too,  Gilbert  v. 
Dent,  46  Ga.  238  (1872)  *  Warden  v.  Pattee,  57  Iowa  515  (1881). 

"Farrar  v.  Peterson,  52  Iowa  420  (1879). 

♦Peterson  v.  The  Mayor,  &c,  of  New  York,  17  N.  Y.  453  (1858). 

5 Finney  v.  Fairhaven  Ins.  Co.,  5  Mete.  192  (1842).  So,  proof  of  a  claim  in 
bankruptcy  against  the  maker  of  a  note  by  one  as  indorser,  whose  name  has 
been  indorsed  by  an  agent  without  his  authority,  will  be  a  ratification  of  the 
agent's  indorsement,  Harrod  v.  McDaniels.  126  Mass.  413  (1879). 

6Nat.  Bank  of  Orleans  v.  Fassett,  42  Vt.  432  (1869).  So,  two  years'  silence 
after  knowledge  by  the  bank  officers  that  a  check  had  been  given  in  _ its- 
name  by  the  cashier  without  authority  amounts  to  evidence  of  ratification 
by  the  bank,  De  Land  v.  Nat.  Bank,  20  Cent.  L.  J.  196  (111.  Sup.  Ct.  1884). 


TERMINATION    OF    AGENCY.  529 

his  principal,  has  renewed  it  with  the  principal's  knowledge 
and  without  dissent  on  his  part,  it  will  amount  to  an  original 
authority  for  the  note.1  So,  if  the  principal  knows  ^f  the 
agent's  receiving  money  without  authority  on  a  note  left  in 
his  possession,  and  remains  silent  afterwards  for  nearly  three 
years,  leaving  the  money  in  the  meanwhile  in  the  agent's 
hands,  his  authority  will  be  implied  for  other  subsequent  pay- 
ments made  to  the  agent  on  the  note.2  So,  if  the  principal  has 
indorsed  a  check  in  blank,  and  given  it  to  his  agent,  who  has 
raised  the  amount  and  filled  the  instrument  up  as  a  bill  of  ex- 
change, it  has  been  held  that  the  principal's  failure  to  object  to 
the  alteration  when  the  bill  was  presented  to  him  for  payment 
amounted  to  a  ratification.3  But  in  an  older  case  in  Massa- 
chusetts, where  bank  notes  had  been  stolen  after  being  signed 
by  the  cashier  and  the  president's  signature  upon  them  had 
been  forged,  the  action  of  the  directors  in  refusing  payment 
of  the  notes  and  returning  them  without  any  statement  that 
they  were  counterfeit,  was  held  not  to  amount  to  ratification 
on  their  part.4 

§  377.  Termination  of  Agency. — The  authority  of  an  agent 
•nee  conferred  continues  until  it  has  been  revoked  and  notice 
of  that  fact  duly  given.5  If  the  authority  has  been  revoked 
without  giving  notice  of  the  fact,  a  bill  of  exchange  drawn 
under  it  afterwards  will  bind  the  principal.6  This  rule  ap- 
plies to  the  authority  of  a  servant,  which  ends  only  when  the 
determination  of  the  relation,  to  which  it  was  incident,  has 
been  made  generally  known.7  But  a  special  agency  expressly 
given  for  a  limited  time  will  end  with  the  limitation.8  So, 
where  the  charter  of  a  bank  expires  at  a  fixed  time,  and  the 

'Whiting  v.  Western  Stage  Co.,  20  Iowa  255  (1866). 
2Wardrop  v.  Dunlop,  1  Hun  325  (1874). 
3  Ward  v.  Williams,  26  III.  447  (1861). 
*  Salem  Bank  v.  Gloucester  Bank,  17  Mass.  29  (1820). 
5Byles  59 ;  Chitty  42  ;  1  Daniel  271 ;  Newsome  v.  Coles,  2  Campb.  617. 
6Caldwell  v.  Neil,  21  La.  An.  342  (1869). 

'Anonymous  v.  Harrison,  12  Mod.  346;  Nickson  v.  Broham,  15  lb.  110; 
Monk  v.  Clayton,  Molloy  282. 
"Manufacturers'  Bank  v.  Barnes,  65  111.  69  (1872). 

2t 


530  CAPACITY PRINCIPAL   AND    AGENT. 

cashier  appointed  before  that  time  holds  over  after  an  exten- 
sion of  the  charter,  his  authority,  so  far  as  regards  the  lia- 
bility of  his  original  bondsmen,  has  been  held  to  end  with 
the  expiration  of  the  original  charter.1 

As  has  been  said,  an  indorsement  of  a  note  for  collection 
will  amount  to  a  power  of  attorney  to  collect  it;  but  such 
power  will  be  revoked  by  a  subsequent  transfer  of  the  note 
by  the  principal.2  So,  too,  in  general,  death  operates  as  a 
termination  of  all  agencies.  But  where  an  agent  has  been 
directed  by  his  principal  to  obtain  securities  on  a  note  and 
to  hand  them  over  with  the  note  to  a  creditor  of  the  princi- 
pal, this  amounts  in  equity  to  a  transfer  of  the  note  and  may 
be  perfected,  it  has  been  held,  by  an  actual  delivery  by  the 
agent  after  the  principal's  death.3  The  authority  of  an 
agent,  as  has  been  seen,  will  also  be  suspended  and  in  some 
cases  terminated  by  the  outbreak  of  a  war  making  the  prin- 
cipal and  agent  alien  enemies.  For  the  consideration  of  this 
subject  the  reader  is  referred  to  an  earlier  part  of  this  work.4 

1  Union  Bank  v.  Ridgely,  1  Harr.  &  G.  324,  431  (1827).  But  not  with  the 
year  for  which  he  was  originally  ejected,  lb. 

*Atkins  v.  Cobb,  56  Ga.  86  (1876). 

sNicolet  v.  Pillot,  24  Wend.  240  (1840).  So,  where  a  note  was  delivered  to 
an  agent  to  be  delivered  by  him  to  the  payee  after  his  principal's  death, 
such  delivery  after  the  maker's  death  has  been  held  to  be  sufficient,  Gid- 
dings  v.  Giddings,  51  Vt.  227  (1878). 

*See  Chap.  VIII.  §  248  et  seq. 


INDIVIDUAL    LIABILITY    OF    AGENT.  531 


II.    LIABILITY    OF    AGENT. 

378.  Individual  Liability  of  Agent. 

379.  not  Confined  to  Instrument. 

380.  bow  Avoided. 

381.  Public  Officers  not  Liable. 

382.  Agent's  Liability  to  Principal — Drawer  to  Drawee. 

383.  to  Payee. 

384.  Indorser  to  Indorsee. 

385.  Negligence  or  Fraud. 

§  378.  Individual  Liability  of  Agent. — Where  an  agent 
signs  commercial  paper  in  his  principal's  name  and  by  his 
authority,  the  principal  will  be  liable  with  or  without  subse- 
quent ratification.1  Sometimes  the  agent  may  bind  his  prin- 
cipal by  his  indorsement  so  far  as  to  effect  a  good  transfer, 
although  the  act  may  not  be  binding  as  an  indorsement  upon 
the  principal.2  If  an  agent,  known  to  be  such  and  author- 
ized to  make  a  contract,  makes  a  contract  for  a  corporation 
which  is  ultra  vires,  he  will  not  thereby  become  personally 
liable.3  But  if  he  makes  a  contract  without  authority,  he 
will  become  personally  liable  in  many  cases  ex  contractu} 
So,  if  he  exceeds  the  authority  given  him.5  And  in  such 
case  he  may  be  held  liable  for  the  whole  amount  due  on  the 
contract.6  And  where  an  agent  has  accepted  a  bill  of  ex- 
change without  authority,  he  will  be  liable  not  only  to  the 
original  payee  or  holder,  but  to  subsequent  indorsees.7  In 
order,  however,  to  hold  an  agent  personally  liable  for  exe- 

lRosaiter  v.  Rossiter,  8  Wend.  494  (1832). 

2 Brown  v.  Donnell,  49  Me.  421  (1860). 

3  Hall  v.  Lauderdale,  46  N.  Y.  75  (1871). 

4Bvles  64 ;  Chitty  47  ;  1  Edwards  I  85  ;  1  Parsons  105  ;  Lewis  v.  Nicholson, 
18  Q  B.  509;  Randall  v.  Trimen,  18  C.  B.  786;  Collen  v.  Wright,  7  El.  &  Bl. 
301  ;  8.  C,  S  lb.  647  ;  Kelner  v.  Baxter,  36  L.  J.  C.  P.  94;  Scott  v.  Lord  Ebury, 
lb.  151.  And  this  is  so  in  Louisiana,  when  the  agent  has  exceeded  his  powers 
and  not  disclosed  his  principal,  Barry  v.  Pike,  21  La.  An.  221  (1869)  ;  Clay 
v.  Oakley,  5  Mart.  (x.  s.)  137  (1826). 

5 Roberts  v.  Button,  14  Vt.  195  (1842). 

6Feeter  v.  Heath,  11  Wend.  479  (1833) ;  Hampton  v.  Speckenagle,  9  Serg. 
&  R.  212  (1823) ;  Meech  v.  Smith,  7  Wend.  315  (1831)  ;  White  v.  Skinner,  13 
Johns.  307  (1816). 

'Polhill  v.  Walter,  3  B.  &  Ad.  114. 


532  CAPACITY PRINCIPAL    AND    AGENT. 

cuting  a  paper  without  authority,  his  want  of  authority  must 
be  made  to  appear  affirmatively.1 

§  379.  Liability  Not  Confined  to  the  Instrument. — Where 
an  agent  has  executed  a  sealed  note  for  his  principal  under  a 
verbal  authority,  it  has  been  held  that  neither  he  nor  the 
principal  will  be  bound  by  the  note,  but  the  agent  may  be 
held  liable  in  a  separate  action  on  the  case.2  So,  directors 
of  a  corporation,  not  forming  the  majority  required  by  char- 
ter in  order  to  bind  the  company,  may  become  liable  indi- 
vidually to  a  bank  which  has  advanced  money  on  checks  of 
the  company's  agent  on  the  strength  of  representations  made 
by  such  directors  as  to  the  agent's  authority.3  So,  where  two 
directors  borrowed  money  for  the  company  without  authority, 
on  a  memorandum  of  deposit,  they  were  held  to  be  liable  in 
an  action  for  breach  of  warranty  of  authority.4 

§  380.  Personal  Liability — How  Avoided. — But  if  an  agent 
is  known  to  be  such,  e.  g.,  if  the  master  of  a  vessel  draws  a 
bill  as  such  for  supplies  for  the  vessel  on  account  of  the 
agents  and  consignees,  he  will  not  be  individually  liable.5^ 
On  the  other  hand,  if  an  agent  contracts  personally,  he  will 
be  personally  liable,  although  the  agency  be  known  and  the 
principal  disclosed.6  And  it  has  been  held  that  merely  de- 
scribing themselves  as  agents  in  such  a  contract  will  not 
relieve  them  from  individual  liability.7 

To  avoid  personal  liability  an  agent  should  either  sign  his 
principal's  name  or  expressly  state  his  own  ministerial  char- 
acter.8    But  it  has  been  held,  under  special  circumstances, 

1  Wilson  v.  Barthrop,  2  M.  &  W.  863. 

2Delius  v.  Cawthorn,  2  Dev.  90  (1829).  And  see,  as  to  liability  of  director 
accepting  a  bill  in  excess  of  bis  authority,  West  London,  &c,  Bank  v.  Kit- 
son,  L.  R.  12  Q.  B.  D.  157  (1884). 

3 Cherry  v.  Colonial  Bank  of  Australia,  L.  R.  3  P.  C.  24  (1869).  And  see 
Ducarry  v.  Gill,  4  C.  &  P.  121. 

4Richardson  v.  Williamson,  L.  R.  6  Q.  B.  276  (1871).  See,  too,  Weeks  v. 
Propert,  L.  R.  8  C.  P.  427  (1873). 

a  Lincoln  v.  Smith,  11  La.  11  (1837). 

•Andrews  v.  Allen,  4  Harring.  452  (Del.  1847). 

T Rollins  v.  Phelps,  5  Minn.  463  (1861),  especially  where  only  a  part  of  the 
whole  number  of  agents  designated  joined  in  signing  the  paper. 

8  Leadbitter  v.  Farrow,  5  M.  &  S.  345 ;  Sowerby  v.  Butcher,  2  Car.  &  M.  368 ; 
b.  C,  4  Tyrw.  320. 


PERSONAL     LIABILITY.  533 

that  lie  may  become  liable  individually  upon  a  note  or  bill 
•executed  without  authority  in  his  principal's  name.1  And 
this  has  been  held  upon  the  theory  that  the  agent,  using 
another's  name  as  maker  of  a  note  without  his  authority, 
really  intended  to  bind  himself  and  had  used  an  assumed 
name  for  that  purpose.2  So,  it  has  been  held  that  if  an 
agent  without  authority  signs  a  note  as  "A.  B.,  attorney  for 
C.  D.,"  he  will  be  personally  liable.3  The  rule  is,  however, 
not  to  be  extended  beyond  cases  where  the  agent  uses  apt 
words  to  charge  himself.  In  other  cases  he  will  not  be  liable 
on  a  contract  executed  in  his  principal's  name.4 

Where  an  agent  has  procured  a  policy  insuring  "A.  for  B., 
to  be  insured  in  ship  G.,"  and  gives  his  individual  note  for 
it  without  any  intention  of  agency,  and  charges  it  to  his  prin- 
cipal, and  the  company  subsequently  proves  its  claim  for  pre- 
miums against  the  bankrupt  estate  of  the  agent  and  receives 
a  dividend  from  it,  it  cannot  afterwards  betake  itself  to  the 
principal  for  payment  of  the  balance  due.5  So,  where  an 
agent,  authorized  to  borrow  money  and  draw  bills  of  ex- 
change on  his  principal,  gives  instead  a  bond  under  seal 
purporting  to  bind  himself  and  his  principal,  the  principal 
cannot  be  held  in  an  action  of  assumpsit  by  the  obligee  of 
the  bond.6 

If  an  agent  signs  his  principal's  name,  adopting  and  using 
it  at  the  time  as  his  own,  he  will  become  individually  liable.7 

'So  held  on  proof  of  agent's  want  of  good  faith,  Wilson  v.  Barthrop,  2  M. 
&  W.  863.  So,  where  a  bill  was  drawn  upon  the  agent  of  a  joint  stock  com- 
pany and  accepted  by  him  "  per  procuration  "  without  authority,  the  agent, 
being  also  a  member  of  the  company,  was  held  liable  as  such,  Nichols  v 
Diamond,  9  Exch.  154  So,  too,  in  Louisiana,  where  the  agent  without  au- 
thority gave  a  note  in  the  name  of  a  firm  after  its  dissolution,  Dodd  v. 
Bishop,  30  La.  An.  1178  (1878). 

'Grafton  Bank  v.  Flanders,  4  N.  H.  239  (1827). 

•Byara  v.  Doores,  20  Mo.  284  (1S35). 

*Chitty  48;  Hall  v.  Crandall,  29  Cal.  567  (1866) ;  Long  v.  Colburn,  11  Mass. 
97;  Ballon  v.  Talbot.  16  lb.  461;  Abbey  v.  Chase,  6  Cush.  54;  VVoodes  v. 
Dennett,  9  N.  H.  55  (1837) ;  Blanchard  v.  Kaull,  44  Cal.  440  (1872).  See,  too, 
White  v.  Madison,  26  N.  Y.  117  (1862). 

'Bedford  Com.  Ins.  Co.  v  Covell,  8  Mete.  442  (1844). 

'Banorgee  v.  Hovey,  5  Mass.  11  (1809). 

1  Baker  v.  Deming,  8  Ad.  &  El.  94;  Kelner  v.  Baxter,  L.  R.  2  C.  P.  174 


534  CAPACITY PRINCIPAL    AND    AGENT. 

But  if  he  gives  a  note  in  the  principal's  name,  signing  it  as 
agent,  he  will  not  be.1  If  without  authority  he  signs  the 
name  of  another  as  acceptor  to  a  bill  of  exchange  without 
any  fraudulent  intent,  this  will  be  a  fraud  in  law,  for  which 
he  will  be  individually  liable  in  an  action  even  to  subsequent 
indorsees  of  the  bill.2  So,  where  the  trustees  of  a  company 
give  a  note  without  authority,  describing  themselves  as  such 
both  in  the  body  of  the  instrument  and  in  their  signatures, 
they  will  still  be  liable  individually.3  The  proper  mode  of 
executing  commercial  paper  by  an  agent  and  the  liability  of 
parties,  as  affected  by  the  mode  of  execution,  are  more  fully 
considered  in  an  earlier  part  of  this  work  treating  of  the 
form  of  the  instrument. 

Where  an  agent  has  given  a  note  or  bill  without  author- 
ity in  his  principal's  name,  his  liability  must  be  confined 
to  such  damages  as  are  proved.4  And  he  will  not  be  liable 
for  a  failure  of  authority  due  to  the  death  of  his  principal 
without  his  knowledge.5 

§  381.  Public  Officers  not  Liable. — A  government  officer, 
as  has  been  already  said,  will  not  be  individually  liable  on 
a  draft  or  bill  of  exchange  given  by  him  as  such  officer.6 

(1866) ;  Jewett  v.  Whalen,  11  Wis.  124  (1860) ;  Rodgers  v.  Coit,  6  Hill  322; 
Brown  v.  Butchers,  &c,  Bank,  lb.  413;  Merchants'  Bank  v.  Spicer,  6  Wend. 
443. 

lJefts  v.  York,  4  Gush.  371  (1849);  S.  C,  10  lb.  392;  Moor  v.  Wilson,  26 
N.  H.  332  (1853). 

2Polhill  v.  Walter,  3  B.  &  Ad.  114. 

3McClure  v.  Bennett,  1  Blackf.  189  (1822). 

4  Eastwood  v.  Bain,  3  Hurlst.  &  N.  738  (1858). 

5Smout  v.  Ilberry,  10  M.  &  W.  1.  Nor  in  such  case  are  the  representatives 
of  the  deceased  principal  liable,  Blades  v.  Free,  9  B.  &  C.  167. 

"Chitty  44;  1  Daniel  365;  1  Parsons  122;  Story  on  Prom.  Notes  \  75??,; 
Macbeth  v.  Haklimand,  1  T.  R.  172;  Unwin  v.  Wolseley,  lb.  674;  Myrtle  v. 
Beaver,  1  East  135;  Rice  v.  Chute,  lb.  579;  Allen  v.  Waldegrave,  2* Moore 
627  ;  Gidley  v.  Palmerstone,  7  lb.  91 ;  S.  C,  2  Brod.  &  Bing.  275;  Prosser  v. 
Allen,  Gow.  117;  Brown  v  Austin,  1  Mass.  208  (1801);  Freeman  v.  Otis,  9 
lb.  272  (1812);  Dawes  v.  Jackson,  lb.  490  (1813);  Walker  v.  Swartwout,  12 
Johns.  444  (1815) ;  Olney  v.  Wickes,  18  lb.  122  (1820) ;  Osborne  v.  Kerr,  12 
Wend.  179  (1834);  Fox 'v.  Drake,  8  Cow.  191  (1828);  Nichols  v.  Moody,  22 
Barb.  611  (1856);  Hodgson  v.  Dexter,  1  Cranch  345;  Bank  of  Kentucky  v. 
Sanders,  3  A.  K.  Marsh.  184  (1820) ;  Jones  v.  Le  Tombe,  3  Dall.  384  (1798). 
But  it  would  be  otherwise  if  there  was  an  intention  on  the  officer's  part  to 
make  himself  individually  liable,  Perry  v.  Hyde,  10  Conn.  330  (1834);  or 
if  he  was  guilty  of  fraud,  or  by  his  act  prevented  a  recovery  from  the  gov- 
ernment, Freeman  v.  Otis,  9  Mass.  272  (1812).     And  mere  want  of  authority 


I 


DRAWER.  535 

Nor  can  he  maintain  an  action  in  his  own  name  on  such  a 
paper  made  to  him  in  his  official  capacity.1  And  it  has  been 
held  that  a  note,  made  to  the  town  treasurer  by  name  "  or 
his  successors  in  office,"  could  not  be  sued  upon  by  the  town.2 
The  exemption  of  public  officers  from  personal  liability  on 
their  contracts  has  been  held  to  extend  to  school  trustees,3 
sheriffs,4  tax  and  revenue  collectors,5  building  committees,6 
superintendents  of  public  institutions,7  municipal  officers,8 
army  and  navy  officers,9  cabinet  officers,10  and  foreign  con- 
suls.11 

§  382.  Drawer — Agent  of  Drawee. — The  liability  of  the 
agent  to  the  principal  is  next  to  be  considered.  Where  the 
agent  draws  a  bill  of  exchange  on  his  principal  by  his 
authority,  the  principal  is  not,  in  general,  liable  as  drawer.12 
Nor  is  it  necessary  in  such  case  that  the  agency  of  the  drawer 
should  be  expressed  on  the  face  of  the  bill,  if  it  is  drawn  in 
fact  for  a  debt  of  the  principal.13  Where  the  drawer  of  a 
bill  is  the  agent  of  the  drawee,  it  is  held  in  England  that  he 
is  liable  both  to  the  payee  and  subsequent  parties,  although 
known  by  them  to  be  actiag  as  agent  merely.14  In  the  Uni- 
ted States  a  different  rule  seems  to  have  been  laid  down,  and 

for  the  contract  has  heen  held  sufficient  to  charge  him  personally  in  New 
Hampshire,  Savage  v.  Rix,  9  N.  H.  263  (1838). 

I  Irish  v.  Webster,  5  Me.  171  (1827) ;  State  v.  Boies,  11  Me.  474  (1834). 
^Arlington  v.  Hines,  1  D.  Chip.  431. 

3Tutt  v.  Hobbs,  17  Mo.  4S6  (1853) ;  Syme  v.  Butler,  1  Call  105  (1797). 

4Enloe  v.  Hall,  1  Humph.  303  (1839). 

5 Nichols  v.  Moody,  22  Barb.  611  (1856). 

6Fox  v.  Drake,  8  Cow.  191  (1828) ;  Damerson  v.  Irwin,  8  Ired.  421  (1848) ; 
Tucker  v.  The  Justices,  13  lb.  434  (1852).  But  see  Simonds  v.  Heard,  23 
Pick.  120  (1839). 

'Osborne  v.  Kerr,  12  Wend.  179  ;  Dawes  v.  Jackson,  9  Mass.  490. 

"Randall  v.  Van  Vechten,  19  Johns.  60  (1821) ;  Olney  v.  Wickes,  18  lb.  122. 
But  see,  for  individual  liability  of  such  officers  growing  out  of  form  of  sig- 
nature, Underbill  v.  Gibson,  2  N.  H.  352  (1821) ;  Hall  v.  Cockrell,  28  Ala.  507 
(1856). 

9  Walker  v.  Swartwout,  12  Johns.  444;  Symes  v.  Butler,  Call  105  (1796). 

10  Hodgson  v.  Dexter,  1  Cranch  345. 

II  Jones  v.  Le  Tombe,  3  Dall.  384. 
"Ducarry  v.  Gill,  4  C.  &  P.  121. 
"Wolfe  v.  Jewett,  10  La.  383  (1836). 
uLeadbitter  v.  Farrow,  5  M.  &  S.  345  (1816). 


536  CAPACITY PRINCIPAL    AND    AGENT. 

it  h-fts  been  held  that  the  agent  who  draws  a  bill  on  his 
principal  for  goods  sold  him,  disclosing  the  principal,  is 
not  liable  to  a  payee  who  has  knowledge  of  the  agency.1 
But  if  the  agent  draws  the  bill  on  his  principal  in  his  indi- 
vidual name,  he  will  be  liable  as  drawer  to  the  payee  and 
subsequent  parties,2  even  though  the  bill  is  drawn  expressly 
chargeable  to  the  principal's  account  and  though  the  payee 
knows  of  the  agency.3 

§  383.  Drawer  or  Maker — Agent  of  Payee. — Where  the 
drawer  of  a  bill  is  the  payee's  agent,  as  in  the  case  of  a  bill 
drawn  on  the  purchaser  of  goods  for  payment,  the  agent  is 
individually  liable  to  the  payee  by  the  English  rule.4  But 
in  the  United  States  again  a  different  rule  has  been  laid 
down.5  And  where  the  maker  of  a  note,  as  agent  for  the 
payee,  uses  a  fictitious  name  for  the  purpose  of  raising  money 
for  the  payee,  he  has  been  held  in  a  recent  case  not  to  be 
individually  liable  even  to  a  bona  fide  holder  for  value.6 

§  384.  Indorser — Agent  of  Indorsee. — Where  the  agent 
acts  as  indorser  of»a  bill  or  note  in  transferring  it  to  his  prin- 
cipal, he  makes  himself  liable  in  England  as  indorser,  unless 
he  expressly  restricts  the  liability.7  But  he  would  not  be 
liable  on  such  indorsement  to  his  principal,  if  it  were  made 
merely  for  the  purpose  of  a  remittance  and  by  the  principal's 
own  order.8     If  the  agent  purchases  a  draft  for  his  principal 

x\  Daniel  290;  1  Parsons  94;  Roberts  v.  Austin,  5  Whart.  313  (1840),  re- 
versing 2  Miles  254  (1838). 

2Newhall  v.  Dunlap,  14  Me.  180  (1837). 

3Mayhew  v.  Prince,  11  Mass.  54  (1814). 

*Chitty  46 ;  1  Daniel  292 ;  1  Parsons  103 ;  Le  Fevre  v.  Lloyd,  5  Taunt.  749 ; 
S.  C,  1  Marsh.  318;  Sowerby  v.  Butcher,  2  C.  &  M.  363;  S.  C,  4  Tyrw.  320. 

5  Jones  v.  Lathrop,  44  Ga.  398  (1871)  ;  Mechanics'  Bank  v.  Earp,  4  Rawle 
390  (1834). 

"Bartlett  v.  Tucker,  104  Mass.  336  (1870).  In  this  case  the  note  was  pur- 
chased on  the  payee's  credit,  the  actual  maker  being  neither  known  nor 
credited  by  the  purchaser. 

7Chitty  46;  1  Daniel  293;  1  Parsons  104;  Goupy  v.  Harden,  7  Taunt.  159; 
S.  C,  2  Marsh.  454. 

8Chitty  49;  1  Daniel  293;  Warwick  v.  Noakes,  Peake  68;  Kimmell  v. 
Bittner,  62  Penna.  St.  203  (1869).  See,  too,  Lewis  v.  Brehme,  33  Md.  431 
(1870).  And  an  action  by  the  principal's  indorsee  against  the  agent  on 
such  an  indorsement  was  restrained  by  injunction  in  a  case  where  the 
bill  had  been  made  payable  to  the  agent  accidentally,  the  plaintiff  being 


agent's  liability  foe,  negligence  or  fraud.      537 

by  his  direction,  and  remits  it  by  indorsement,  the  draft 
being  that  of  a  drawer  in  good  credit  at  the  time,  he  will  not 
be  liable  to  his  principal  as  an  indorser.1  But  if  he  is 
directed  to  make  remittance  by  bill  on  a  "  good  house,"  and 
the  house  drawn  upon  proves  otherwise,  he  will  be  liable  to 
the  principal.2 

In  general,  to  render  an  agent  liable  as  a  guarantor  to  his 
principal  of  paper  so  indorsed  by  him,  consideration  for  such 
liability  is  necessary,  as  well  as  an  express  undertaking  on 
the  agent's  part.3  Agents  under  a  del  credere  commission 
are,  however,  liable  on  their  indorsement  to  their  principal, 
it  being  a  part  of  the  business  intrusted  to  them.4  And  such 
agents  are  liable  for  loss  on  a  bill  of  exchange  remitted  by 
them  to  a  member  of  their  firm  who  had  made  advances,  in 
repayment  of  such  advances,  and  dishonored  while  in  his 
hands.6  If  an  agent  indorses  to  his  principal  for  accommo- 
dation merely,  he  will  not  be  liable  to  the  principal,  following 
the  usual  rule  as  to  accommodation  paper.6 

§  385.  Agent's  Liability  for  Negligence  or  Fraud. — The 
liability  of  an  agent  to  his  principal  for  negligence  or  fraud 
in  the  performance  of  his  duty  will  be  considered  more  fully 
elsewhere,  and  is  treated  of  more  extensively  in  special  works 
upon  the  subject  of  agency.  If  an  agent,  employed  to  obtain 
a  discount  for  his  principal,  misapplies  the  proceeds,  he  will 
be  liable  to  the  principal  for  damages.7  Instead  of  a  special 
action  on  the  case  against  the  agent  for  breach  of  his  duty  as 
such,  the  principal  may  sue  him  in  such  case  for  money  had 

cognizant  of  that  fact,  Kidson  v.  Dihvorth,  5  Price  564.  And  an  agent  re- 
mitting a  bill  by  mail  will  not  be  liable  for  its  loss,  where  it  was  stolen  and 
paid  to  a  stranger,  Warwick  v.  Noakes,  Peake  68.  And  this  would  have 
been  the  case,  it  seems,  even  without  express  directions,  it  being  in  the 
ordinary  course  of  business,  lb.,  per  Lord  Kenyon. 

1  Byers  v.  Harris,  9  Heisk.  652  (1872). 

2Leverick  v.  Meigs,  1  Cow.  645  (1824). 

'Sharp  i.  Emmet,  5  Whart.  288  (1839). 

'Chitty  46;  1  Daniel  293;  1  Parsons  105;  Mackenzie  v.  Scott,  6  Bro.  P.  C. 
280;  Lewis  v.  Brehme,  33  Md.  43  (1870). 

6 Lucas  v.  Groning,  1  Stark.  391. 

6Chitty  46;  1  Daniel  293;  1  Parsons  104;  Ex  parte  Robinson,  Buck  113. 

7  Wolf  v.  Brower,  5  Robt.  601  (1866). 


538  CAPACITY PRINCIPAL   AND    AGENT. 

and  received.1  This  is  the  proper  form  of  action  to  he  em- 
ployed, and  he  cannot  bring  trover  for  the  bill  which  has 
been  misapplied.2  In  like  manner,  if  a  municipal  officer  has 
obtained  money  on  a  note  issued  by  him  without  authority 
in  the  name  of  the  town,  a  recovery  of  the  money  received 
may  be  had  against  him  by  the  town,  and  the  illegality  of 
the  note  will  be  no  defense.3 

It  is  a  well  established  principle  of  law  that  an  agent  can- 
not make  a  profit  in  his  principal's  business  at  the  principal's 
expense,  and  that  all  profits  made  by  him  from  dealing  with 
his  principal's  property  and  in  his  business  belong  to  the 
principal.4  Thus,  parties  whose  interests  are  adverse  to  one 
another  cannot  well  stand  in  the  relation  of  principal  and 
agent  in  the  same  business.  For  instance,  the  holder  of  a 
note  cannot  be  the  maker's  agent  for  the  purpose  of  taking 
it  out  of  the  statute  of  limitations  by  indorsing  on  it  a  new 
promise  of  payment.5  So,  a  corporation  cannot  give  a  valid 
note  to  its  acting  trustees.6  Although  it  has  been  held  that 
a  municipal  corporation  may  lawfully  take  and  sue  upon  a 
note  made  by  a  defaulting  city  treasurer  for  the  money  taken 
by  him.7 

1  Thorpe  v.  Thorpe,  3  B.  &  Ad.  580. 

2  Palmer  v.  Jarmain,  2  M.  &  W.  282. 
"Holderness  v.  Baker,  44  N.  H.  414  (1862). 

*Diplock  v.  Blackburn,  3  Campb.  43  ;  Thompson  v.  Havelock,  1  Campb. 
327. 

6  Wright  v.  Bessman,  55  Ga.  187  (1875).  The  payee  of  a  note  may,  how- 
ever, act  as  agent  for  the  maker  in  signing  it  in  his  presence  and  at  his  re- 
quest, Haven  v.  Hobbs,  1  Vt.  238  (1828). 

6  Wilbur  v.  Lynde,  49  Cal.  290  (1874).  And  see,  as  to  the  question  of  a 
treasurer  borrowing  city  funds  in  his  hands  as  such,  and  giving  his  note  to- 
the  city,  Greening  v.  Patten,  51  Wis.  146  (1881). 

'City  of  Buffalo  v.  Bettinger,  76  N.  Y.  393  (1879). 


WANT    OF    AUTHORITY.  539 


III.    DEFENSES. 

386.  Defense— Want  of  Authority. 

387.  When  Admissible. 

388.  Notice  of  Limit  of  Authority. 

389.  Municipal  Warrants. 

390.  When  Inadmissible — Bona  fide  Holder. 

391.  Commercial  Paper  Payable  to  Bearer. 

392.  Principal  Estopped  by  Conduct. 

393.  Evidence — Burden  of  Proof. 

§  386.  Want  of  Authority — As  a  Defense. — Where  the 
owner's  title  to  a  bill  or  note  is  bad,  as,  for  instance,  in  case 
of  forged  or  stolen  paper,  such  defect  will  also  affect  the  title 
of  any  agent  to  whom  it  is  transferred.1 

Where  the  agent  himself  has  no  authority  to  sign  a  bill  or 
note  for  his  principal,  the  signature  will  amount  to  a  forgery,, 
on  which  the  principal  will  not  be  liable  even  to  a  bona  fide 
holder  for  value.2  And  where  the  principal  has  limited  the 
authority  given  his  agent,  he  will  not  be  liable  if  the  author- 
ity is  exceeded.3  Thus,  if  an  agent  be  authorized  to  indorse 
certain  notes  for  his  principal  in  their  joint  name,  they  not 
being  partners,  a  holder,  who  knew  nothing  of  this  authority, 
cannot  recover  against  the  principal  on  another  note  executed 
in  that  manner,  but  in  excess  of  the  express  authority  given,, 
although  the  holder  be  a  bona  fide  purchaser  for  value.4  This 
is  still  more  clearly  the  case  where  the  instrument  carries  notice 
of  the  limit  of  authority  on  its  face,  e.  g.  where  the  selectman 
of  the  town  was  authorized  to  give  notes  for  bounty  payable 
to  recruits  when  mustered  into  the  United  States  service,  and 
the  notes  bore  the  words  "value  received  in  government 
military  service,"  but  the  payee,  though  enlisted,  was  never 
mustered  into  the  service.5  But  where  power  was  given  by 
the  directors  of  a  company  to  their  chairman  to  accept  bills 

^yles  259;  Chitty  292;  Solomons  v.  Bank  of  England,  13  East  135  ;  S.  C., 
1  Rose  99;  De  la  Chaumette  v.  Bank  of  England,  9  B.  &  C.  208. 
*1  Edwards  g  83;  1  Parsons  119;  Lander  v.  Castro,  43  Cal.  497  (1872). 
3Fenn  v.  Harrison,  3  T.  R.  757;  East  India  Co.  v.  Hensley,  1  Esp.  111. 
4Hotchkiss  v.  English,  4  Hun  369  (1875). 
6Ladd  v.  Town  of  Franklin,  37  Conn.  53  (1870). 


540  CAPACITY PRINCIPAL    AND    AGENT. 

drawn  on  it  by  A.,  on  his  depositing  securities  to  a  certain 
amount,  a  bona  fide  holder  of  the  acceptances  was  held  not  to 
be  affected  by  the  fact  that  this  condition  as  to  deposit  of 
securities  was  only  partially  complied  with,  the  restriction 
being  in  a  measure  a  secret  one  and  the  directors  being 
estopped  by  their  action  from  setting  it  up.1 

Where  an  agent  purports  to  sign  a  note  for  several  prin- 
cipals, some  of  whom  have  given  him  no  authority  to  do  so, 
the  others  who  have  authorized  him  will  still  be  bound.2  If 
an  agent  has  indorsed  a  bill  payable  to  order  without  any 
authority  he  alone  will  be  liable  to  an  action.3  Such  defense 
is,  however,  a  personal  privilege,  and  it  has  been  held  that  a 
surety  signing  a  promissory  note  cannot  set  up  in  his  own  de- 
fense that  the  principal's  name  was  signed  without  authority.4 

Where  notes  are  given  to  an  agent  in  settlement  of  losses 
which  he  falsely  represented  himself  to  have  incurred  in  the 
maker's  business,  it  will  be  no  defense  to  the  maker,  that  the 
notes  were  given  without  knowledge  that  his  instructions  had 

1In  re  Land  Credit  Co.  of  Ireland,  L.  R.  4  Ch.  App.  460  (1869).  Giffard, 
L.  J.,  says  in  this  case,  p.  473:  "  Under  resolutions  such  as  these,  if  there  is 
an  acceptance  modo  el  forma,  and  by  the  persons  pointed  out  by  the  resolu- 
tions, it  is  not  to  be  deemed  incumbent  even  on  persons  who  have  notice 
of  the  resolutions  to  inquire  whether  the  particular  consideration  mentioned 
in  them  was  received.  The  fact  of  the  person  who  is  the  agent  accepting 
and  parting  with  the  acceptance  is  in  point  of  fact  an  assurance  by  that 
person  that  he  has  done  all  that  is  required  to  be  done  by  him  on  behalf 
•of  the  company  who  employed  him — an  assurance  on  which  the  person 
who  deals  with  the  company  not  only  may  safely  rely,  but  must  of  necessity 
rely,  otherwise  the  business  of  companies  of  this  description  could  never  be 
carried  on.  *  *  *  I  think  it  is  quite  enough  to  put  the  case  simply  upon 
this:  that  the  acceptance  of  the  bills  was  a  transaction  plainly  within  the 
powers  of  the  company,  that  it  was  a  transaction  plainly  within  the  powers 
of  the  board  of  directors,  that  the  fact  that  these  bills  were  accepted  and 
handed  over  toas  perfectly  well  known  to  the  board  of  directors,  and  that  whether 
it  was  assented  to  by  them  with  or  without  knowledge  as  to  the  securities 
which  were  taken  is,  in  my  opinion,  quite  immaterial.  There  was,  at  all 
events,  a  representation  to  the  public  by  the  agents  of  the  company,  who 
were  instructed  to  carry  out  this  transaction,  that  everything  was  rightly 
•done;  and  I  am  of  opinion  that  it  does  not  lie  in  the  mouth  of  the  com- 
pany to  assert  that  what  was  so  represented  to  be  rightly  done  was  not 
•carried  out  according  to  the  precise  terms  specified  in  that  which,  if  in  point 
of  fact  it  was  a  limitation  of  authority  at  all,  was  not  a  limitation  of  au- 
thority intended  to  be  communicated  to  the  public  or  to  have  any  effect  as 
between  the  company  and  the  public." 

2 Taylor  v.  Jones,  1  Ind.  17  (1848). 

Team  v.  Filica,  7  Man.  &  G.  513. 

4Weare  v.  Sawyer,  44  N.  H.  198  (1862). 


DEFENSES.  541 

been  disobeyed  by  the  agent.  But  fraudulent  representations 
on  the  agent's  part  as  to  the  transactions,  inducing  the  prin- 
cipal to  give  the  notes,  will  be  a  good  defense,  the  notes  being 
to  that  extent  without  consideration.1 

§  387.  Defenses — When  Admissible. — Where  bills  and 
notes  are  negotiated  by  an  agent  without  authority  after  they 
are  due,  they  are  subject  to  the  defense  of  want  of  authority, 
and  the  principal  may  have  an  action  for  the  refunding  of 
the  money  obtained  on  them.2  But  where  a  bill  is  payable  to1 
the  drawer's  order  and  indorsed  by  him  to  his  agent  after  its 
maturity  for  the  purpose  of  taking  up  his  own  outstanding 
acceptances,  and  is  misapplied  by  the  agent,  this  will  consti- 
tute no  defense  against  a  bona  fide  holder.3 

On  the  other  hand,  where  a  bill  is  indorsed  to  an  agent 
for  the  purpose  of  procuring  a  discount  before  its  ma- 
turity, and  is  misapplied  by  the  agent,  this  will  constitute 
a  good  defense  at  suit  of  a  holder  before  maturity  for  usuri- 
ous consideration.4  But  where  an  agent  obtains  a  loan  for 
his  principal  on  usurious  terms  without  his  knowledge,  the 
usury  will  not  be  presumed  to  have  been  authorized  by  the 
principal.5  Where  an  agent,  without  disclosing  his  principal, 
has  purchased  a  note  from  the  maker  at  a  usurious  rate,  such 
excess  of  lawful  interest  may  be  recovered  by  the  maker 
from  the  payee.6  And  where  A.  sells  a  bill  of  exchange  for 
B.,  who  has  held  it  as  agent  and  misappropriated  it,  and  pays 
over  to  B.  only  a  part  of  the  proceeds,  he  is  not  entitled  to 
the  immunity  of  a  bona  fide  holder  for  value  and  is  subject 
to  defense  on  the  owner's  part  arising  out  of  the  misappro- 
priation, although  the  agent,  A.,  had  represented  the  bill  to- 
be  his  own  property.7 

^eall  v.  January,  62  Mo.  434  (1876). 

"Lee  v.  Zagury,  8  Taunt,  114. 

3  Wright  v.  Hay,  2  Stark.  398. 

'Keutgen  v.  Parks,  2  Sandf.  60  (1848). 

6Rogers  v.  Buckingham,  33  Conn.  81  (1865). 

•Culver  v.  Bigelow,  43  Vt.  249  (1870). 

'Bastable  v.  Pool,  1  Cromp.  M.  &  R.  410;  S.  C,  5  Tyrw.  111. 


542  CAPACITY PRINCIPAL   AND    AGENT. 

If  the  holder  of  a  bill  takes  it  with  knowledge  that  it  was 
given  without  authority  of  the  principal,  he  will  take  it 
subject  to  such  defense.1  And  if  a  bill  has  been  received  by 
;an  agent  for  a  particular  purpose,  and  discounted  by  him  in 
disregard  of  that  purpose,  neither  he  nor  a  third  person 
purchasing  it  with  knowledge  of  the  circumstances  can  hold 
the  proceeds  or  use  them  as  a  set-off  against  the  real  owner.2 
But  the  mere  fact  that  the  person  selling  the  note  to  the 
plaintiff  was  a  broker  is  not  sufficient  to  charge  him  with 
notice,  or  subject  him  to  such  a  defense  on  the  part  of  an 
owner,  who  has  been  defrauded  by  the  agent's  sale  of  the 
note  for  his  own  benefit.3 

Where  a  principal  has  given  his  agent  authority  to  accept 
bills  in  his  name,  he  cannot  escape  liability  by  setting  up  his 
own  want  of  interest  in  the  particular  transaction  or  the  want 
of  consideration  to  him,  unless  he  shows  that  the  holder  had 
knowledge  of  the  agent's  abuse  of  his  authority.4 

§  388.  Notice  of  Limit  of  Agent's  Authority. — If  the  agency 
of  the  party  is  made  to  appear,  the  principal  will  not  be 
bound  beyond  the  authority  given.5  And  where  the  holder 
has  notice  that  the  party  acting  as  agent  is  such,  he  is 
bound  to  inquire  into  his  authority.6  Where  the  authority 
is  expressly  conferred  in  writing,  and  is  exceeded  by  the 
agent,  the  principal  will  not  be  liable.7  And  authority  ap- 
pearing by  the  use  of  such  words  as  "  per  procuration  "  is 
such  notice  of  agency  as  will  put  the  holder  on  inquiry.8 
But  it  seems  that  the  addition  to  the  indorser's  name  of  the 

^yles  58;  Attwood  v.  Munnings,  7  B.  &  C.  278;  S.  C,  1  Man.  &  Ry.  78. 

2Ex  parte  Frere,  Mont.  &  MacA.  263;  Kay  v.  Flint,  8  Taunt.. 21;  Ex  parte 
Flint,  1  Swanst.  30. 

3Atlas  Nat.  Bank  v.  Savery,  127  Mass.  75  (1879). 

4 Broadway  Savings  Bank  v.  Vorster,  30  La.  An.  587  (1878). 

5Chitty  37;  1  Daniel  265. 

6Chitty  37;  Attwood  v.  Munnings,  7  B.  &  C.  278;  East  India  Co.  v.  Tritton, 
3  lb.  280. 

7Beach  v.  Vandewater,  1  Sandf.  265  (1848).  In  this  case  authority  was 
given  to  accept  drafts  to  be  drawn  against  goods  purchased,  the  agent 
"having  evidence  in  his  possession  of  such  purchases." 

8Byles  56;  Alexander  v.  McKenzie,  6  C.  B.  766;  Attwood  v.  Munnings, 
mpra;  Stagg  v.  Elliott,  12  C.  B.  (n.  s.)  373. 


MUNICIPAL    WARRANTS.  543 

word  "  curator,"  will  not  amount  to  such  notice.'  Where  an 
agent  is  authorized  to  accept  a  bill  for  his  principal,  the 
holder  may  demand  the  production  of  the  authority.2  Where 
an  indorsement  contains  such  words  as  "  for  my  use,"  or 
"  within  must  be  credited  to  A.  B.,"  this  shows  a  limited 
agency  in  the  indorsee  and  will  prevent  a  transfer  by  him 
free  from  defense.3  And  in  such  case  a  bill  transferred  by 
the  agent  as  security  for  advances  made  to  him  may  be  re- 
covered in  trover  by  the  principal.4 

§  389.  Municipal  Warrants — Defense  Admissible. — As  we 
have  already  seen,  municipal  warrants  drawn  by  one  town 
officer  on  another  are  not,  properly  speaking,  negotiable. 
Such  instruments  are,  therefore,  liable  even  at  suit  of  a  bona 
jide  holder  to  the  defense  of  being  issued  without  authority.5 
And  this  is  true  although  they  are  made  payable  to  bearer;6 
and  especially  where  they  are  made  payable  out  of  some  par- 
ticular fund,  specifying  a  road  tax  or  other  public  fund.7 

§  390.  Defenses — When  Inadmissible — Bona  Fide  Holder. — 
Where  a  note  or  bill  payable  to  bearer  has  been  delivered  by 
an  agent  without  authority  from  his  principal,  and  has  come 
into  the  hands  of  a  bona  fide  holder  for  value  before  matur- 
ity, it  will  be  good  against  all  parties  notwithstanding  the 
agent's  want  of  authority.8  So,  if  notes  have  been  put  in  the 
hands  of  an  agent  to  obtain  discounts  for  his  principal,  and 
have  been  transferred  by  his  indorsement  and  the  proceeds 
misapplied  by  him,  the  pri-ncipal  cannot  recover  them  from 
a  bona  fide  holder  for  value.9     So,  where  notes  are  indorsed 

1  Paulette  v.  Brown,  40  Mo.  52  (1867). 

'Byles  59;  1  Parsons  120;  Attwood  v.  Munnings,  7  B.  &  C.  278;  S.  C,  1 
M.  &'  Ry.  78. 

sTreuttel  v.  Barandon,  8  Taunt.  100;  Sigourney  v.  Llovd,  8  B.  &  C.  622,  3 
M.  &  Ry.  58. 

♦Treuttel  v.  Barandon,  8  Taunt.  100. 

5Sturtevant  v.  Inhabitants  of  Liberty,  46  Me.  457  (1859) ;  People  v.  Super- 
visors of  El  Dorado,  11  Cal.  171  (1858). 

•Smith  v.  Inhabitants  of  Cheshire,  13  Gray  318  (1859). 

7 Dyer  v.  Covington  Township,  19  Penna.  St.  200  (1852). 

8Byles  58;  Miller  v.  Race,  1  Burr.  452;  Lawson  v.  Weston,  4  Esp.  56; 
Raphael  v.  Bank  of  England,  17  C.  B.  161;  Bird  v.  Daggett,  97  Mass.  494 
<1867). 

•Ogden  v.  Marchand,  29  La.  An.  61  (1877). 


•544  CAPACITY — PRINCIPAL   AND    AGENT. 

in  blank  to  an  agent  for  a  particular  purpose,  which  has  been 
disregarded  by  him,  the  principal  will  be  bound  to  a  bona 
fide  holder  by  reason  of  the  general  authority  implied  in  the 
blank,  and  cannot,  against  such  holder,  avail  himself  of  the 
fact  that  the  agent  has  exceeded  his  authority.1  And  it 
makes  no  difference  in  such  case  that  the  agent  has  been 
guilty  of  a  fraud  upon  his  principal.2  Such  fraud  will  not 
make  the  indorsement  a  forgery.3 

In  like  manner,  where  paper  has  been  delivered  with 
blanks  not  filled  up,  an  agency  to  fill  them  is  created  by, 
and  implied  from,  the  delivery  of  the  paper ;  and  if  the 
blanks  are  filled  in  excess  of  the  authority  given,  the  maker 
will  still  be  liable  to  a  bona  fide  holder  of  the  paper  for 
value.4  So,  if  a  note  is  indorsed  in  blank,  and  delivered  as 
collateral  to  one  who  disposes  of  it  in  violation  of  the  agree- 
ment under  which  he  holds  it,  and  it  comes  into  the  hands  of 
a  bona  fide  holder,  who  surrenders  it  for  a  new  note  from  the 
maker,  the  indorser  cannot  afterwards  set  up  against  the 
maker  who  has  thus  paid  it  the  want  of  authority  on  the  part 
of  his  own  indorsee  to  transfer  it.5  So,  where  the  holder  of 
a  note  places  it  for  sale  in  the  hands  of  a  broker,  he  will  be 
bound  by  his  representations  to  a  buyer  that  it  is  good  busi- 
ness paper,  and  he  cannot  afterwards  set  up  that  the  note 
had  no  previous  existence  as  a  note  and  was  purchased  from 
the  broker  at  a  usurious  rate  of  interest.6 

§  391.  Commercial  Paper  Payable  to  Bearer. — From  these 
cases  the  rule  may  be  laid  down,  that  possession  carries  with 
it  presumptively  the  ownership  and  power  to  dispose  of  nego- 

1  Collins  v.  Martin,  1  Bos.  &  P.  648,  2  Esp.  520;  Grant  v.  Vaughan,  3  Burr. 
1516. 

'Bolton  v.  Puller,  1  Bos.  &  P.  539;  Ramsbotham  v.  Cator,  1  Stark.  228. 

3 Putnam  v.  Sullivan,  4  Mass.  45  (1808). 

♦Androscoggin  Bank  v.  Kimball,  10  Cusb.  373  (1852);  Herbert  v.  Huie,  1 
Ala.  18  (1840) ;  Roberts  v.  Adams,  8  Porter  297  (1838) ;  Putnam  v.  Sullivan, 
4  Mass.  45  (1808) ;  Fnllerton  v.  Sturges,  4  Ohio  St.  529  (1855) ;  Johnson  v. 
Blasdale,  1  Sm.  &  M.  17  (1843)  ;  Hemphill  v.  Bank  of  Ala.,  6  Sm.  &  M.  44 
(1846) ;  Goad  v.  Hart,  8  Sm.  &  M.  787  (1847). 

'Yates  v.  Valentine,  71  111.  613  (1874). 

•Ahein  v.  Goodspeed,  9  Hun  263  (1876). 


PRINCIPAL    ESTOPPED    BY    CONDUCT.  545 

tiable  paper  payable  to  bearer  or  indorsed  in  blank,  and  the 
bona  fide  holder  of  such  an  instrument  is  not  subject  to  any 
defense  arising  out  of  the  agent's  fraud  or  want  of  authority.1 
Thus,  where  the  agent  draws  a  bill  on  his  principal  which  is 
accepted  by  the  principal  for  the  purpose  of  obtaining  a  dis- 
count, he  will  be  bound  by  the  agent's  subsequent  pledge  of 
the  bill.2  So,  if  a  broker,  intrusted  with  a  note  for  the  pur- 
pose of  sale  for  his  principal's  benefit,  pledges  it  for  a  pre- 
existing debt  of  his  own,  the  principal  cannot  recover  it 
from  such  pledgee.3  So,  if  the  agent  under  such  circum- 
stances transfers  it  for  the  purpose  of  obtaining  indemnity 
for  himself  in  another  matter.4  And  this  has  been  held  to 
be  true  even  of  municipal  bonds  made  by  a  school  district, 
which  are  negotiable  in  form,  and  have  been  transferred  by 
the  agent  in  payment  of  his  own  debt.0  It  is  also  true,  in 
general,  of  bills  and  notes  indorsed  in  blank  to  an  agent  for 
collection,6  or  for  safe  keeping.7 

§  392.  Principal  Estopped  by  Conduct. — Where  one  suffers 
his  agent  to  act  ostensibly  as  principal,  in  a  business  name 
which  is  used  for  the  principal's  business  and  belongs  neither 
to  principal  nor  agent  individually,  an  acceptance  by  the 
agent  in  such  name  will  bind  the  principal,  although  ex- 
pressly forbidden  by  him.8  So,  if  one  has  suffered  another 
to  draw  bills  of  exchange  in  his  name,  he  will  be  liable  to  a 
bona  fide  holder  of  such  bills  for  value,  although  he  may 
have  received  no  consideration  for,  and  had  no  knowledge 
of,  the  particular  bill  in  question.9  So,  where  the  agent  has 
indorsed  a  note  in  excess  of  his  authority  and  in  fraud  of  his 
principal,  and  other  notes  similarly  executed  by  him  have 

'Murrell  v.  Jones,  40  Miss.  565  (1866). 
'Clement  v.  Leveretfc,  12  N.  H.  317  (1841). 
■Giovanovich  v.  Citizens  Bank,  26  La.  An.  154  (1874). 
4Bridenbecker  v.  Lowell,  32  Barb.  9  (1860). 
"School  Districts  State  Bank,  8  Neb.  168  (1879). 
•Stutzman  v.  Pryne,  23  Iowa  17  (1867). 
'Ringling  v.  Kohn,  4  Mo.  A  pp.  59  (1877). 
8 Edmunds  v.  Bushell,  L.  R.  1  Q.  B.  97. 
'Smith  v.  Stanger,  Peake  Add.  116. 

2k 


546  CAPACITY PRINCIPAL    AND    AGENT. 

been  recognized  and  paid  by  tbe  principal,  a  general  author- 
ity may  be  implied  which  will  bar  the  principal  from  defense 
in  such  case  against  the  holder  for  value  without  notice.1 
This  is  true,  too,  of  the  fraud  of  a  bank  director,  misappro- 
priating the  proceeds  of  paper  sent  to  him  in  his  official 
capacity  to  be  discounted  ;2  or  of  an  accommodation  indorse- 
ment without  authority  by  the  general  cashier  and  financial 
agent  of  a  note-broking  firm;3  and,  in  general,  of  bills  and 
notes  misapplied  by  any  agent  having  a  general  authority.4 

The  principal  is  bound  in  like  manner,  as  we  have  seen 
by  representations  of  the  agent  as  to  the  character  of  such 
paper  discounted  for  the  principal.5  And  the  fact  that  the 
principal's  instructions  to  his  agent  have  been  violated  by 
him  will  be  no  defense  against  a  bona  fide  holder  for  value, 
if  the  agent's  act  is  within  the  general  scope  of  his  business.6 
It  is  to  be  remembered,  however,  that  a  general  agency  to 
manage  a  business  as  a  clerk  or  even,  in  n>any  cases,  as  a 
general  manager  will  not  cover  notes  or  bills  so  as  to  render 
the  principal  liable ;  especially  where  the  consideration  has 
not  been  received  by  the  agent  in  the  course  of  the  princi- 
pal's business.7 

An  indorsement  generally  warrants  the  authority  of  prior 
parties  to  sign  the  paper.  But  where  an  indorsee  has  volun- 
tarily taken  up  and  paid  a  bill  drawn  by  an  agent  after  per- 
sonal examination  of  the  agent's  authority,  and  has  been 
afterwards  obliged  to  pay  it  again  by  reason  of  the  agent's 
want  of  authority,  he  cannot  hold  his  immediate  indorser  as 
warranting  the  authority  of  such  agent.8 

§  393.  Evidence — Burden  of  Proof. — Where  commercial 
paper  has  been  executed  by  an  agent,  it  is  always  incumbent 

'Exchange  Bank  v.  Monteath,  26  N.  Y.  505  (1863),  reversing  17  Barb.  171, 
24  lb.  371.  ' 

2  Bank  of  United  States  v.  Davis,  2  Hill  452  (1842). 

3Ed\vards  v.  Thomas,  66  Mo.  468  (1877). 

♦Hooe  v.  Oxley,  1  Wash.  19  (Va.  1791). 

6North  River  Bank  v.  Aymer,  3  Hill  262  (1S42). 

•Crawford  v.  Hildebrant,  6  Lana.  502  (1871). 

fBank  of  Hamburg  v  Johnson,  3  Rich.  42  (1846). 

"East  India  Co.  v.  Trilton.  3  B  &  (3.  280. 


EVIDENCE.  547 

upon  the  holder  to  prove  the  agent's  authority  in  order  to 
render  the  principal  liable.  And  the  burden  of  making  such 
proof  is  upon  the  holder.1  Where  the  agent  is  an  officer  of 
an  incorporated  company,  as  has  been  already  said,  his  au- 
thority as  agent  is  sometimes  to  be  presumed  from  his  office. 
Thus,  the  cashier  of  a  bank  will  be  presumed  to  have  au- 
thority to  transfer  its  negotiable  securities  by  indorsement.2 
But  it  has  been  held  that  where  the  charter  of  the  company 
provides  that  its  affairs  shall  be  conducted  by  a  board  of 
directors,  it  will  not  be  presumed  that  the  president  and 
secretary  have  authority  by  virtue  of*  their  office  to  make 
notes  for  the  company.3  So,  if  a  note  be  made  by  the  select- 
men of  a  town,  the  holder  must  show  their  authority  to  bind 
the  town  in  such  manner.4  Or  if  a  note  be  given  by  the 
trustees  of  a  school  district,  their  authority  must  be  shown.5 
So,  if  the  agent,  who  sells  a  note  for  his  principal,  gives  an 
express  warranty  of  its  genuineness,  his  authority  so  to  do 
must  be  shown  by  the  holder  of  the  paper.6  And  if  the 
holder  of  a  note  executed  by  an  agent  relies  on  its  ratifica- 
tion by  the  principal,  he  must  show  its  execution  by  the 
agent  and  the  subsequent  adoption  by  the  principal  of  the 
unauthorized  signature  as  his  own.7     But  in  Texas  the  holder 

'New  York  Iron  Mine  v.  Citizens  Bank,  44  Mich.  344  (1880) ;  Northampton 
Bank  v.  Pepoon.  12  Mass.  288  (1814) ;  Wallace  v.  Wallace,  8  Bradw.  09  (1880) ; 
Flax,  &c,  Manuf.  Co.  v.  Ballentine,  1  Hair.  454  (N.  J.  1838) ;  Knisditu.  Lang, 
2  Abb.  Pr.  227  (1855);  Spicer  v.  Smith,  23  Mich.  96  (1871).  This  rule  is 
changed  as  to  bank  drafts  in  England  by  th-e  statute  of  16  and  17  Vict.  c. 
59  \  19,  which  provides  that  "any  draft  or  order  drawn  upon  a  banker  for  a 
sum  of  money  payable  to  order  on  demand,  which  shall  when  presented 
for  payment  purport  to  be  indorsed  by  the  person  to  whom  the  same  shall 
he  drawn  payable,  shall  he  a  sufficient  authority  to  such  hanker  to  pay  the 
amount  of  such  draft  or  order  to  the  hearer  thereof,  and  it  shall  not  he  in- 
cumbent on  such  hanker  to  prove  that  such  indorsement  or  any  subsequent 
indorsement  was  made  by  or  under  the  direction  or  authority  of  the  person 
to  whom  the  said  draft  or  order  was  or  is  made  payable,  either  by  the 
drawer  or  any  indorser  thereof."  And  this  act  applies  to  the  indorsement 
of  the  name  of  the  payee  'A.  B  ,  per  C.  D.,  agent,"  Charles  v.  Blackwell,  L. 
R.  1  C.  P.  D.  548;  S.  C,  2  76.  151  (1S77). 

*Wild  v.  Bank  of  Passamaquoddy,  3  Mass.  505  (1825). 

3  McCullough  v.  Moss,  5  Den.  567,  575  (1846). 

*Grea*t  Falls  Bank  v.  Farmington,  41  N.  II.  32  (1860) ;  Andover  v.  Grafton, 
7  lb.  294  (1S34) ;  Rich  v.  Enol,  51  N.  H.  350  (1871). 

5School  District  v.  Thompson,  5  Minn.  280  (1861) 

6  Wilder  v.  Cowl.es,  100  Mass.  487  (1868). 

'Cravens  c.  Gillilan,  63  Mo.  28  (1876). 


548  CAPACITY PRINCIPAL   AND    AGENT. 

of  a  note  purporting  to  be  executed  by  an  agent  need  not 
prove  the  execution  nor  the  authority  of  the  agent,  unless 
they  are  expressly  denied  in  the  pleading.1 

At  common  law  the  averment  that  the  defendant  accepted 
or  drew  a  bill  of  exchange  "  in  his  own  proper  handwriting," 
was  formerly  held  to  be  supported  by  proof  of  signature  by 
an  authorized  agent,  and  could  be  rejected  as  surplusage,  if 
untrue.2  This  has  now  been  changed  by  the  recent  English 
rules  of  pleading,  where  there  is  no  proof  of  a  subsequent 
promise  by  the  principal.3 

Where  it  is  incumbent  on  the  holder  of  a  bill  or  note,  fco 
prove  the  agent's  authority  as  agent  of  the  maker  or  iu- 
dorser,  this  may  be  done  by  parol  evidence.4  And  even 
though  the  bill  itself  shows  the  agent  to  have  acted  under  a 
special  written  authority,  other  evidence  is  admissible  to 
establish  this  authority.5  Where  an  agent  has  executed  a 
draft  for  his  principal,  the  agent's  statements  as  to  a  former 
draft,  executed  by  him  under  similar  circumstances  and  paid 
by  his  principal,  have  been  held  admissible  as  evidence  of 
his  agency.6  And  admissions  on  the  principal's  part  of  his 
authority  to  execute  another  similar  acceptance  have  been 
held  admissible  in  confirmation  of  other  evidence  showing  a 
general  authority  for  the  acceptance  in  question.7  On  the 
other  hand,  where  the  payee's  indorsement  has  been  made 
by  an  agent,  the  payee's  admission,  in  writing,  of  his  agent's 
authority  is  not  competent  evidence  of  that  fact  in  an  action 
by  the  indorsee  against  the  maker.8 

^rashear  v.  Martin,  25  Tex.  202  (1860). 

2Byles  631 ;  Chitty  642  ;  Booth  v.  Grove,  Moo.  &  M.  182  ;  S.  C,  3  C.  &  P.  335. 
And  although  since  the  recent  English  rules  of  pleading,  1  Will.  IV.,  such 
averment  if  untrue  will  subject  the  plaintiff  to  costs,  it  may  still  be  sup- 
ported by  evidence  of  a  subsequent  promise  by  defendant  to  pay,  Helmsley 
v.  Loader,  2  Campb.  450. 

3 Levy  v.  Wilson,  5  Esp.  180. 

*Miller  v.  Moore,  1  Cranch  C.  C.  471  (1807) ;  Morse  v.  Green,  13  N.  H.  32 
(1842) ;  Cain  v.  Mack,  33  Tex.  135  (1870) ;  McWhirt  v.  McKee,  6  Kans.  412 
(1870). 

5 Page  v.  Lathrop,  20  Mo.  589  (1855). 

•MacDonough  v.  Heyman,  38  Mich.  334  (1878). 

T Llewellyn  v.  Winckworth,  13  Mees.  &  W.  598  (1845). 

8  Clark  v.  Peabody,  22  Me.  500  (1843). 


GENERAL   POWERS  549 


CHAPTER  XII. 

CAPACITY— PARTNERS,  EXECUTORS,  &o. 

J.  Partners. 
II.  Personal  Representatives. 


I.    PARTNERS. 

394.  General  Powers. 

395.  Partners  by  Implication. 

396.  Dormant — Special. 

397.  New  Partners — Anticipation. 

398.  Powers  Limited  to  Partnership  Business. 

399.  Partnership  Consent — Implied  or  Presumed. 

401.  Business  Foreign  to  Partnership. 

402.  Release  or  Defense  Affecting  All. 

403.  Contracts  between  Partners. 

404.  Actions  against  Partnership — By  Indorsee. 

405.  What  Partnerships  Cannot  Execute  Commercial  Paper. 

406.  Joint  Payees  not  Partners — Joint  Tenants. 

407.  Partnership  Name. 

408.  Joint  Names. 

409.  Individual  Name. 

410.  Firm  Contract. 

411.  Same  as  Firm  Name. 

412.  Presumptions  as  to  Individual  Name. 

413.  Partnership  Paper  for  Individual  Debt. 

414.  Defense — When  Admissible. 

415.  Consent  of  Partners — Presumption. 

416.  Defense,  when  Inadmissible. 

417.  Burden  of  Proving  Notice. 

419.  Accommodation  Paper. 

420.  Consent  Binds  Firm. 

421.  Burden  of  Proving  Consent. 

422.  when  Binding — Bona  Fide  Holder? 

423.  Partnership  Agreement  Violated. 

424.  Fraud  as  a  Defense. 

425.  Pleading — Burden  of  Proof. 

426.  Dissolution  of  Firm — Surviving  Partners. 

427.  after  Dissolution — No  Power  to  Draw  Bills. 

428.  Implied  Powers — Admissions. 

429.  Ratification — Consent. 

430.  Powers  of  Liquidating  Partner. 

431.  Ante-Dating — Blank  Instruments. 

432.  Renewals  after  Dissolution. 

433.  Transfer  after  Dissolution. 

434.  by  Death — Surviving  Partner. 

435.  when  Admissible  as  a  Defense. 

400.  Notice  of  Dissolution. 
437.  Implied  Notice. 

§  304.  General  Powers. — Commercial  paper  is  frequently 
made  and  transferred  by  partners,  and  the  execution  of  it 


550  CAPACITY PARTNERS. 

on  behalf  of  the  firm  is  seldom  if  ever  by  all  the  members 
of  the  firm.  It  is  a  general  rule  that  partners  in  mercantile 
business  have  power  to  give,  transfer  and  accept  bills,  notes 
and  checks  in  the  firm  name  and  business.1  And  each 
member  of  the  firm  has  authority  to  sign  the  firm  name  to 
such  paper  in  its  business.  This  applies  also  to  indorse- 
ments.2 Aud  the  execution  of  a  bill  or  note  by  one  partner 
in  the  name  of  the  firm  will  support  an  averment  of  its 
execution  by  the  firm.3  Where  a  firm  has  become  liable, as 
agents  for  the  amount  of  certain  notes  taken  for  its  principal 
without  authority,  it  has  been  held  that  one  part-aer  may 
bind  the  firm  by  a  settlement  made  with  the  principal  by 
signing  the  firm  name  to  the  notes  as  a  co-maker.4 

And  a  partner  may  bind  his  firm  by  a  note  in  the  firm 
name  given  to  a  creditor  in  settlement  of  an  existing  liability 
of  the  firm,  although  the  power  to  bind  the  firm  by  such 
paper,  in  general,  is  withheld  by  the  articles  of  partnership.5 
And  in  Illinois  where  the  common  law  distinction  between 
sealed  and  unsealed  instruments  is  done  away,  it  has  been 
held  that  a  partner  might  bind  his  firm  by  a  note  under  seal 
signed  in  its  name,  and  given  for  money  borrowed  for  its 
use.6  So,  one  partner  may  bind  the  firm  by  a  warranty 
given  in  the  sale  by  him  of  a  firm  note;7  and,  under  special 

^yles  44;  Chitty  52;  1  Daniels  326;  1  Edwards  §  97 ;  1  Parsons  123; 
Story  on  Prom.  Notes  \  72;  Story  on  Partnership  \  102;  Harrison  v.  Jackson, 
7  T.R.  207;  Pinkney  v.  Hall,  1  Salic.  126;  S.  C,  1  Ld.  Raym.  175;  Lane  v. 
Williams,  2  Vern.  277;  Wells  v.  Masterman,  2  Esp.  731;  Swan  v.  Steele,  7 
East  210;  Ridley  v.  Taylor,  13  lb  175;  Shirreff  v.  Wilks,  1  lb.  48;  Sutton  v. 
Gregory,  Peake  Add.  150;  Ex  parte  Bonbonns,  8  Ves.  542;  Ex  parte  Gardom, 
15  lb.  286;  Wiseman  v.  Easton,  8  L.  T.  (n.  s.)  637  (1863);  National  Union 
Bank  v.  Landon,  66  Barb.  189  (1870);  Williams  v.  Conner,  14  So.  Car.  621 
(1880);  Sherwood  v.  Snow,  46  Iowa  481  (1877);  Stimson  v.  Whitney,  130 
Mass.  591  (1881) ;  Drennen  v.  House,  41  Penna.  St.  30  (1861).  See.  also,  15' 
Cent,  L.  J.  302. 

2  Walker  v.  Kee,  14  So.  Car.  142  ( 1880) ;  Barrett  v.  Russell,  45  Vt.  43  (1872). 
Especially  where  the  proceeds  have  gone  to  the  firm,  Mohawk  Nat.  Bank 
v.  Van  Slyck,  29  Hun  188  (1883). 

3  Porter  v.  Cummings,  7  Wend.  172  (1831 ).  But  not  without  proof  of  au- 
thority or  partnership,  a  note  signed  by  one  in  the  individual  names  of  all, 
Pease  v.  Morgan,  7  Johns.  468  (1811). 

4Brayley  v.  Hedges,  52  Iowa  623  (1879). 
6Langan  v.  Hewett,  13  Sm.  &  M.  122  (1849). 
6  Walsh  v.  Lennon,  98  111.  27  (1881). 
'Sweet  v.  Bradley,  24  Barb.  519  (1857). 


PARTNERS    BY    IMPLICATION.  551 

circumstances,  by  a  contract  guaranteeing  payment  for  pur- 
chases made  by  another  on  the  credit  of  the  guarantor.1 

So,  a  partner  has  the  general  power  to  assign  and  dispose 
of  the  assets  of  the  firm  and  to  bind  the  firm  by  such  acts.2 
And  it  has  even  been  held  that  in  the  case  of  insolvency  of 
the  firm  one  partner  may  assign  its  property  to  a  creditor 
with  preferences,  so  as  to  bind  the  firm.3  But  one  partner 
cannot  make  a  general  assignment  of  the  partnership  prop- 
erty to  a  trustee  for  the  benefit  of  creditors  in  the  presence 
of  the  other  partners  and  against  their  will  or  without  their 
consent.4  Nor  can  one  partner  bind  the  other  by  his  sub- 
mission of  their  affairs  to  arbitration  without  express  or 
clearly  implied  authority.5 

The  power  of  partnerships  to  execute  commercial  paper  in 
the  firm  name  by  the  hand  of  one  partner  is  recognized  gen- 
erally by  the  mercantile  law  of  the  world,  and  it  is  expressly 
provided  for  by  statute  in  some  States.  The  laws  of  Hun- 
gary require  the  partnership  contract  in  such  case  to  be 
deposited  with  the  court  and  the  partnership  name  to  be  reg- 
istered in  a  public  register.6  And  the  statutes  of  the  Argen- 
tine Republic  make  express  provision  for  the  transfer  by  one 
partner  in  the  firm  name  of  bills  of  exchange  drawn  in  favor 
of  the  firm.7 

§  395.  Partners  by  Implication. — The  relation  of  partners 
to  one  another  is  in  general  created  and  regulated  b}r  express 
contract,  although  it  may  arise  even  among  themselves  by 
implication.  As  to  other  parties,  one  who  represents  himself 
to  be  a  partner  aud  is  not  so  becomes  liable  thereby  to  parties 
relying  on  such  representation  and  taking  obligations  of  the 

^Ex  parte  Gardom,  15  Ves.  286.  A  partner  has  not,  in  general,  power  to 
bind  his  firm  by  a  contract  in  its  name  as  guarantor  or  surety,  Parsons  on 
Partnership  216.     And  see  infra,  as  to  commercial  paper  of  such  character. 

2 Harrison  v.  Sterry,  5  Cranch  289  (1809). 

"Mabbett  v.  White,  12  N.  Y.  442  (1855). 

*Deming  v.  Colt,  3  Sandf.  284  (1849). 

'Adams  v.  Bankhart,  5  Tyrw.  425  (1835). 

'Hungary  (Exch.  Law  1861  Art.  12). 

^Argentine  Republic  (Code  Com.  1862  Art.  809). 


552  CAPACITY PARTNERS. 

firm  on  the  strength  of  it.1  So,  if  a  person  knowingly  suf- 
fers another  to  use  his  name  with  his  own  as  that  of  a  firm, 
he  will  become  liable  as  a  partner  on  a  note  or  bill  given  in 
such  firm  name,  although  between  themselves  no  such  rela- 
tion may  exist.2  In  such  case  he  will  be  liable  to  any  one  to 
whom  he  has  been  held  out  as  such  partner  with  his  knowl- 
edge and  sufferance,  and  who  has  relied  on  such  information.3 
But  representations  of  the  sort  made  to  other  persons  will 
not  render  him  liable  as  a  partner  to  any  one  to  whom  they 
were  not  communicated.4 

§  396.  Dormant  and  Special  Partners. — The  liability  of  all 
the  partners  in  a  firm  upon  a  bill  or  note  given  in  its  name 
extends  also  to  dormant  parties,  whose  names  do  not  appear  in 
that  of  the  firm.5  Thus,  a  note  given  by  an  active  partner 
in  the  firm's  name,  in  the  hands  of  a  bona  fide  holder  believ- 
ing it  to  be,  as  represented,  for  the  use  of  the  firm,  will  bind 
dormant  as  well  as  active  partners  in  the  firm.6  Where, 
however,  a  creditor  deals  with  the  firm  without  knowing  of 
any  dormant  partner  and  learns  subsequently  of  his  exist- 
ence, he  may  elect  to  proceed  against  all  the  partners  or 
against  the  active  partners  only ;  and,  in  the  latter  case,  he 
cannot  be  compelled  to  join  the  dormant  partner.7  In  like 
manner,  the  ostensible  partner  may  bring  suit  on  a  partner- 
ship contract  without  joining  the  dormant  partner.8     And 

'Chittv  51 ;  1  Edwards  §  96 ;  Harvey  v.  Kay,  9  B.  &  C.  356;  Fox  v.  Clifton, 
6  Bing.  791 ;  S.  C,  4  Moo.  &  P.  676;  Doubleday  v.  Muskett,  7  Bing.  117;  S. 
C,  4  Moo.  &  P.  750;  Ex  parte  Langdale,  18  Ves.  300. 

2 Smith  v.  Hill,  45  Vt.  90  (1872). 

3Byles  50;  1  Daniel  323;  Dickinson  v.  Valpy,  10  B.  &  C.  141;  S.  C,  5  M. 
&  Ry.  126;  Gurney  v.  Evans,  3  Hurlst.<fc  N.  122. 

*Chitty  52;  Vice  v.  Lady  Anson,  7  B.  &  C.  409;  Vere  v.  Ashby,  10  lb.  288; 
Carter  v.  Whalley,  1  B.  &  Ad.  13. 

5Byles  50;  Chitty  55;  1  Edwards  \  108;  Vere  v.  Ashby,  supra;  Lloyd 
v.  Ashby,  2  B.  &  Ad.  23;  Swan  v.  Steele,  7  East  210;  Wintle  v.  Crowther, 
1  Tyrw.  215;  S.  C,  1  C.  &  J.  310;  Gurney  v.  Evans,  27  L.  J.  Exch.  166 
(1858)  ;  even  though  given  for  a  debt  of  the  old  firm  of  which  he  was  not  a 
member,  Lloyd  v.  Ashby,  supra.  See,  too,  Boudreaux  v.  Martinez,  25  La. 
An.  167  (1873) ;  Bradshaw  v.  Apperson,  36  Tex.  133  (1871). 

6Etheridge  v.  Binney,  9  Pick.  272  (1830). 

'Chitty  57;  Ex  parte  Norfolk,  19  Ves.  455;  Ex  parte  Hodgkinson,  lb.  291 ; 
Ex  parte  Hamper,  17  lb.  403 ;  Benfield's  Case,  5  lb.  424. 

8Leveck  v.  Shafto,  2  Esp.  468;  Lloyd  v.  Archbowl,  2  Taunt.  324;  Mawman 
v.  Gillett,  2  Taunt,  325  n. ;  Kell  v.  Nain-by,  10  B.  &  C.  20. 


NEW    PARTNERS.  553 

if  the  agreement  which  provides  for  the  dormant  part- 
nership is  dated  back,  it  will  not  act  retrospectively,  so  as  to 
render  the  dormant  partner  liable  on  paper  actually  given 
before  the  agreement,  although  after  its  date,  for  the  benefit 
of  the  original  active  partners.1  But  where  a  firm  which 
has  a  dormant  partner  is  dissolved,  and  its  commercial  paper 
is  afterward  renewed  without  any  intention  of  discharging 
the  firm,  the  former  dormant  partner  with  the  others  will 
still  remain  liable  on  the  original  paper.2 

Many  of  the  States  provide  by  statute  for  limited  or  special 
partnership.  In  most  of  these  cases  the  special  partner's 
liability  is  limited  by  statute  to  the  capital  actually  invested 
by  him  in  the  concern ;  and  he  is  not  liable,  and  cannot  be 
sued,  upon  contracts  made  by  the  firm  in  its  partnership 
name.  For  a  consideration  of  special  partnerships  the 
reader  must  be  referred  to  books  relating  particularly  to  the 
law  on  that  subject.  As  regards  persons  contracting  with  the 
firm,  a  special  partner  is  virtually  not  a  member  of  the  firm. 

§  397.  New  Partners — Anticipation. — Where  new  partners 
come  into  a  firm,  although  the  name  of  the  former  firm  con- 
tinues, the  new  partners  do  not  become  liable  on  that  account 
for  the  debts  of  the  old  firm.  A  new  partner  will  not  be 
liable  to  a  holder  with  notice  upon  an  acceptance  given  by 
the  old  partners  in  the  firm  name  for  a  debt  of  the  former 
firm:1  But  the  new  partner,  though  not  liable  for  the  debt 
of  the  old  firm,  will  be  liable  to  a  holder  for  value  and  without 
notice  on  an  acceptance  given  in  the  firm  name  for  a  debt  of 
the  old  firm.4  And  it  has  been  held  that  where  the  new  firm 
assumes  the  debt  of  the  old  firm,  and  promises  to  pay  the 
holder,  giving  its  note  for  it,  it  thereby  makes  the  debt  its 
own,  and  the  note  is  not  a  promise  to  pay  the  debt  of  another.5 

^yles  50;  Vere  v.  Ashbv,  10  B.  &  C..288.  See,  too,  Wilson  v.  Tamilian, 
6  Man.  &  G.  236;  Battley  v.  Lewis,  1  lb.  155;  S.  C,  1  Scott  N.  R.  143. 

*  Parker  v.  Canfield,  37  Conn.  250  (1870).  For  a  fuller  discussion  of  this 
•question  the  reader  is  referred  to  the  chapter  on  Payment  by  Note,  infra. 

sByles  40;  Shirreffu  Wilks,  1  East  48. 

'See  Saville  v.  Robertson,  4  T.  R  720. 

5Osborn  v.  Osborn,  36  Mich.  48  (1877). 


554  CAPACITY PARTNERS. 

Sometimes  the  firm  name  is  used  in  anticipation  of  a  part- 
nership to  be  formed.  In  such  case,  where  a  bill  has  been 
drawn  on  a  firm  before  it  was  formed,  the  members  of  the 
firm  will  be  bound  by  a  subsequent  acceptance  in  the  firm 
name  by  one  partner.1  So,  the  partners  may  be  bound  by  a 
bill  or  note  given  in  the  firm  name  without  authority  and  in 
anticipation  but  subsequently  ratified.2  But  the  firm  will 
not  be  liable  on  a  bill  of  exchange  drawn  in  the  firm  name 
by  one  partner,  for  advances  made  to  him  before  the  com- 
mencement of  the  partnership;3  nor  on  a  bill  given  by  one 
partner  in  the  firm  name  before  its  formation  to  raise  money 
for  himself."1  And  a  firm  will  not  be  liable  for  a  note  given 
by  one  partner  in  anticipation  in  its  name  for  money  loaned 
him,  although  the  money  be  afterward  used  in  the  partner- 
ship business.5 

§  398.  Power  Limited  to  Partnership  Business. — The  power 
of  a  partner  to  bind  his  firm  by  commercial  paper  executed 
in  its  name  is  confined  to  transactions  in  the  business  of  the 
partnership.6  But  where  a  bill  or  note  is  given  in  the  part- 
nership name,  it  is  presumed  in  the  absence  of  contrary  evi- 
dence to  have  been  given  in  the  partnership  business.7     And 

1Westcott  v.  Price,  Wright  220  (1863). 

■Chitty  59;  Fox  v.  Clifton,  6  Bing.  776;  Ex  parte  Bonbonus,  8  Ves.  542; 
Thicknesse  v.  Bromilow,  2  C.  &  J.  425. 

3Chitty  59  ;  Green  v.  Deakin,  2  Stark.  347. 

*  Chitty  58;  Greenslade  v.  Dower,  7  B.  &  C.  635;  S.  C,  1  M.  &  By.  640; 
Saville  v.  Robertson,  4  T.  R.  720. 

5Baxter  v.  Plunkett,  4  Houst.  450  (1872). 

6 Livingston  v.  Roosevelt,  4  Johns.  251  (1809)  ;  Hotchkiss  v.  English,  4  Hun 
369;  S.  C,  6  T.  &  C.  658  (1875)  :  Graves  v.  Kellenberger,  51  Ind.  66  (1875)  ; 
Stegall  v.  Coney,  49  Miss.  761  (1874)  ;  Norton  v.  Thatcher,  8  Neb.  186  (1879) ; 
Atlantic  State  Bank  of  Brooklyn  v  Savery,  82  N.  Y.  291  (1880) ;  Tompkins  v. 
Woodyard.  5  W.  Va.  216  (1872);  Newman  v.  Richardson,  9  Fed.  Rep.  865 
(1881).  Where  a  firm  of  agents  has  incurred  liability  as  such  for  a  breach 
of  contract,  a  note  given  in  settlement  by  one  partner  is  in  the  business  of 
the  firm  and  binds  all,  Bray  ley  v.  Hedges*  52  Iowa  623  (1879).  And  if  a  part- 
ner originally  gave  his  individual  note  for  a  firm  debt,  he  may  afterward 
renew  it  or  indorse  the  renewal  in  the  firm  name,  Wilson  v.  Richards,  28 
Minn.  337  (1881). 

Totv  v.  Bates,  11  Johns.  544  (1814);  Carrier  v.  Cameron,  31  Mich.  373 
(1875) ;  National  Union  Bank  v.  Landon,  66  Barb.  193  (1870) ;  Abpt  v.  Miller, 
5  Jones  32(1857);  Church  v.  Sparrow.  5  Wend.  223(1830);  Whitaker  v. 
Brown,  16  lb.  507  (1836) ;  Thurston  v.  Lloyd,  4  Md.  283  (1853) ;  Manning  i>. 
Hays,  6  lb.  5  (1854) ;  Mifflin  v.  Smith,  17  Serg.  &  R.  165  (1828) ;  Hamilton  v. 


PARTNERSHIP    CONSENT.  £>5f) 

it  has  been  held  that  this  presumption  is  not  destroyed  by 
the  fact  that  the  bill  drawn  in  the  firm  name  was  made  pay- 
able to  one  partner  and  discounted  by  him  and  the  proceeds 
of  the  discount  paid  to  him.1 

§  399.  Partnership  Consent — Implied  or  Presumed. — The 
liability  of  partners  upon  paper  given  by  one  partner  in  the 
firm  name  is  derived  from  their  consent,  expressed  or  im- 
plied. In  general,  such  consent  is  implied  from  the  business 
of  the  firm  and  the  custom  of  merchants.  If  the  paper  is 
not  given  in  the  partnership  business,  and  this  fact  appears, 
the  consent  of  the  other  partners  must  be  proved  affirma- 
tively.2 But  it  is  not  necessary  to  such  consent  that  the 
partners  should  have  actual  knowledge  of  the  particular 
transaction.  Consent  may  be  implied  from  the  nature  of 
the  partnership.3  Or  it  may  be  implied,  like  the  authority 
from  principal  to  agent,  from  the  fact  that  in  other  transac- 
tions and  with  other  parties  the  partner  has  acquiesced  in  the 
use  of  the  firm  name  in  this  manner.4  So,  the  consent  of 
one  partner  to  such  contract  may  be  implied  from  subsequent 
conduct  inconsistent  with  a  disclaimer  on  his  part.5 

Subsequent  ratification  by  him  may  be  implied,  as  in  the 
similar  relation  of  principal  and  agent.6  Receiving  the  pro- 
ceeds of  the  bill  or  delay  in  disaffirming  it  will  amount 
to  a  ratification.7    Where  a  note  is  made  by  OJie  firm   and 

Summers,  12  B.  Mon.  11  (1851) ;  Ensminger  v.  Marvin,  5  Black f.  210  (1839)  ; 
A. lams  v.  Ruggles,  17  Kans.  237  (1876) ;  Holmes  v.  Porter,  39  Me.  157(1855)  ; 
Hayward  v.  French,  12  Gray  453  (1859) ;  Moorehead  v.  Gil  more,  77  Penna. 
St.  118  (1874) ;  Sherwood  v.  Snow,  46  Iowa  481  (1877);  Davis  v.  Cook,  14 
Nev.  265  (1879);  Lindh  v.  Crowley,  29  Kans.  756  (1883)  ;  Marsh  v.  Thomp- 
son Nat.  Bank,  21  Bradw.  217  (1878). 

'Haldeman  v.  Bank  of  Middletown,  28  Penna.  St.  440  (1857). 

'Mercein  v.  Andrus,  10  Wend.  461  (1833) ;  Waller  v.  Keyes,  6  Vt.  257  (1834). 

3Smith  v.  Lusher,  5  Cow.  688  (1S25).  Of  course  the  partner  executing  the 
paper  cannot  defend  on  the  ground  of  a  want  of  authority  to  do  so,  Louisi- 
ana Ins.  Co.  v.  Walters,  25  La.  An.  560  (1873). 

4Ditts  v.  Lonsdale,  49  Ind.  521  (1875). 

5 Dudley  v.  Littlefield,  21  Me.  418  (1842). 

61  Parsons  142. 

7See  Richardson  v.  French,  4  Mete.  577  (1842),  where  the  firm  received 
the  proceeds;  and  Foster  v.  Andrews,  2  Peftr.  &  W.  160  (1830),  where  the 
firm  failed  to  disaffirm  a  note  after  learning  that  it  had  been  given  for  the 
partner's  individual  debt. 


556  CAPACITY PARTNERS. 

indorsed  by  another  to  a  person  who  is  a  common  partner 
in  both  firms,  their  assent  will  be  presumed  in  favor  of  a 
bona  fide  holder  for  value.1  And  although  the  holder  of  a 
note,  made  in  the  name  of  one  partner  for  his  individual 
benefit,  and  indorsed  by  him  in  the  firm  name  without  au- 
thority of  the  firm,  has  taken  it  with  knowledge  of  this  cir- 
cumstance, the  other  partners  will  be  bound  without  any 
independent  consideration  by  their  subsequent  promise  to 
pay  the  note.2  But  where  a  partner  holding  money  indi- 
vidually in  trust  for  another  has  applied  it  without  his  part- 
ners' knowledge  to  the  use  of  the  firm,  this  will  not  render 
the  firm  liable  for  the  money.  Although  it  would  have  been 
otherwise  if  the  partners  had  known  of  the  application  of 
the  money.3  Where  one  partner  had  no  power  originally  to 
bind  the  firm,  a  subsequent  ratification  by  his  partners  will 
not  amount  to  an  original  authority.4  If  a  note,  left  with  a 
member  of  a  law  firm  to  be  sent  into  another  county  for  col- 
lection, was  so  forwarded  by  him  and  collected  by  the  agent 
of  the  firm,  but  never  remitted  to  them,  the  other  partner 
can  only  be  held  liable  on  evidence  of  a  ratification  by  him, 
the  transaction  not  being  strictly  within  the  business  of  the 
partnership.5 

The  consent  of  one  partner  to  a  note  made  in  the  firm 
name  by  a  second  partner  will  be  binding  only  on  himself 
and  not  on  a  third  member  of  the  firm.6  Although  it  has 
been  held  that  an  acceptance  in  the  name  of  a  firm  by  one 
of  its  members  will  bind  the  firm,  where  all  appear  to  have 
knowledge  of  it,  even  if  such  knowledge  has  only  been 
clearly  proved  as  to  one  of  two  other  partners.7 

^hmsen  v.  Negley,  25  Penna.  St.  297  (1855). 

2 Commercial  Bank  of  Buffalo  v.  Warren,  15  N.  Y.  577  (1857). 

3  Jaques  v.  Marquand,  6  Cow.  497  (1826).  As  to  the  effect  of  using  the 
proceeds  of  such  paper  in  the  firm  business,  see,  also,  Deitz  v.  Regnier,  27 
Kans.  94  (1882). 

1  Byles  49  ;  Duncan  v.  Lowndes,  3  Campb.  478.  See,  too,  Vere  v.  Ashby,  10 
B.  &  C.  288;  Wilson  v.  Tumman,  6  Man.  &  G.  236.     But  see  1  Parsons  142. 

5  Brent  v.  Davis,  9  Md.  217  (1856). 

6 King  v.  Faber,  22  Penna.  St.  21  (1853). 

'Flemming  v.  Prescott,  3  Rich.  307  (1831). 


PARTNERSHIP    CONSENT.  557 

§  400.  The  presumption  of  assent  extends,  in  general,  only 
to  negotiable  paper,  and  where  a  non-negotiable  note  is  in- 
dorsed by  one  partner  in  the  name  of  his  firm,  the  burden 
of  proof  is  on  the  indorsee  to  show  the  assent  or  ratification 
of  the  other  partners.1 

Inasmuch  as  the  partnership  liability  is  based  on  the  con- 
sent of  all,  expressed  or  implied,  it  follows  that  the  members 
of  a  firm  will  not  be  liable  on  paper  executed  without  their 
consent  at  suit  of  a  party  who  knows  of  this  want  of  consent.2 
And  the  fact  that  the  other  partner  offered  to  sign  as  indorser, 
while  he  refused  to  sign  as  a  joint  maker,  will  not  render  him 
liable  to  the  payee  on  a  joint  note  executed  in  the  firm  name.3 
It  has  been  held  that  a  partner  may  be  bound  by  the  act  of 
the  majority  of  the  firm,  notwithstanding  his  expressed  dis- 
sent, and  although  this  fact  was  known  to  the  holder.  These 
cases  seem,  however,  to  have  rested  on  a  liability  of  the  firm, 
independent  of  the  paper  in  question  and  serving  as  consid- 
erations for  it.4  The  dissent  of  a  partner  to  a  contract  of 
the  firm  is  a  question  of  fact  for  the  jury.5  And  the  jury 
may  consider  his  conversation  offered  in  evidence  to  show 
his  consent  to  such  use  of  the  firm  name.6  But  the  mere 
declaration  of  one  partner  making  a  note,  that  an  accom- 
modation indorsement  was  obtained  by  him  for  the  use  of  the 
firm  and  that  the  proceeds  went  to  the  benefit  of  the  firm, 
will  not  be  sufficient  to  bind  the  firm.7 

'Sweetser  v.  French,  2  Cush.  309  (1848). 

aByles  47;  1  Daniel  329;  1  Edwards  g  102;  1  Parsons  129;  Heilimt  v. 
Nevill,  L.  R.  5  C.  P.  478;  Lord  Gallway  v.  Matthew,  10  East  264 ;  Wilson  v. 
Dyson,  1  Stark.  164.  But  see  Moffitt  v.  Roche,  92  Ind.  96  (1883),  to  the 
effect  that  there  must  be  knowledge  of  objection  on  the  part  of  such  partner 
and  not  of  the  mere  lack  of  consent. 

3Leavitt  v.  Peck,  3  Conn.  124  (1819). 

*1  Edwards  §  98.  And  see  Wilkins  v.  Pearce,  5  Den.  541  (1848),  where  it 
was  so  held  as  to  an  agreement  by  one  partner  to  indemnify  one  who  signed 
accommodation  paper  for  the  firm.  So,  it  has  been  held  that  a  firm  will  be 
liable  on  notes  given  in  its  name  l>y  a  majority  of  the  partners  for  supplies 
purchased  by  them  in  the  firm  business  notwithstanding  the  dissent  of  one 
partner,  Johnston  v.  Dutton,  27  Ala.  245  (1855). 

5  Vice  v.  Fleming,  1  Younge  and  J.  227. 

•Windham  Co.  Bank  v.  Kendall,  7  R.  I.  77  (1861). 

TUhler  v.  Browning,  4  Dutch.  79  (1859). 


558  CAPACITY PARTNERS. 

§  401.  Business  Foreign  to  Partnership. — If  a  bill  of  ex- 
change is  made  by  one  partner  in  the  partnership  name  but 
not  in  its  business,  it  is  still  ostensibly  the  paper  of  the  firm, 
and  as  such  will  bind  the  firm  at  suit  of  a  bona  fide  holder 
for  value  before  maturity.1  And  although  such  a  holder  has 
taken  a  renewal  of  such  note  in  the  firm  name,  after  learning 
that  the  original  note  was  given  in  a  business  which  did  not 
concern  the  firm  and  without  the  other  partner's  knowledge, 
he  can  still  recover  against  the  firm  by  virtue  of  his  original 
character  as  a  bona  fide  holder  of  the  original  note.2  But 
though  a  firm  is  bound  by  a  note  in  the  partnership  name, 
the  members  of  it  will  only  be  bound  jointly  on  a  joint  and 
several  note  executed  in  the  name  of  the  partners.3  And 
the  power  of  a  partner  to  execute  or  indorse  commercial 
paper  for  his  firm,  gives  him  no  power  to  bind  an  individual 
partner  by  acting  in  his  name.4 

§  402.  Release  or  Defense  Affecting  All. — Where  a  defense 
exists  against  one  partner,  it  will  affect  the  rights  of  all  the 
firm.5  Thus,  if  an  acceptor  is  relieved  from  his  liability  as 
to  one  of  a  firm  drawing  a  bill  of  exchange  by  the  individual 
promise  of  that  partner  to  provide  for  it,  this  will  form  a 
good  defense  as  to  all  the  partners.6     So,  if  a  bill  of  exchange 

1  Ridley  v.  Taylor,  13  East  175;  Sherwood  v.  Snow,  46  Iowa  481  (1877); 
First  National  Bank  of  Chittenango  v.  Morgan,  6  Hun  346  (1876),  affirmed 
7:;  N.  Y.  593  (1878);  Greg?  v.  Fisher,  3  III.  App.  261  (1878);  Sedgwick  v. 
Lewis,  70  Penna.  St.  217  (1871 ) ;  Faler  v.  Jordan,  44  Miss.  283  (1870) ;  Smith 
v.  Lusher,  5  Cow.  688,  709  (1825) ;  Rolston  v.  Click,  1  Stew.  526  (Ala.  1828) ; 
Silverstein  v.  Atkinson,  45  Miss.  81  (1S71). 

2  Hopkins  v.  Boyd,  11  Md.  107  (1857). 

3Bvles45;  Chitty73;  1  Daniel  331;  1  Parsons  136;  Perring  v.  Hone,  4 
Binir.  28;  S.  C,  12  Moore  125,  2  C.  &  P.  401 ;  McClae  v.  Sutherland,  3  El.  & 
Bl.  36. 

AMcCauley  v.  Gordon,  64  Ga.  221  (1879). 

5Byles46;  1  Daniel  325;  Astley  v.  Johnson,  5  H.  &  N.  137;  Brandon  v. 
Scott,  7  El.  &  Bl.  234.  In  like  manner  the  discharge  of  one  is  the  discharge 
of  all,  Westcott  v.  Price,  Wright  220  (1833). 

6 Richmond  v.  Hersy,  1  Stark.  202,  the  proceeds  of  the  acceptance  in  this 
case  having  been  used  in  payment  of  previous  accommodation  acceptances. 
So,  too,  a  like  promise  of  the  individual  drawer  of  a  bill  to  provide  for  it 
relieves  the  acceptor  in  a  suit  brought  by  the  drawer's  firm,  to  whom  the 
bill  had  been  indorsed,  Sparrow  v.  Chisman,  9  B.  &  C.  241 ;  S.  C,  4  M.  &  Ry. 
206.  But  one  partner  cannot  set  off  his  individual  debt  by  way  of  a  receipt 
against  a  note  held  by  his  firm  so  as  to  bind  its  creditors,  Mayer  v.  Garber, 
53  Iowa  689  (1880). 


CONTRACTS    BETWEEN    PARTNERS.  559 

is  drawn  or  accepted  for  the  accommodation  of  one  partner, 
and  is  afterward  transferred  to  bis  firm,  the  firm  cannot  re- 
cover against  the  accommodation  drawer  or  acceptor.1 

§  403.  Contracts  between  Partners. — On  the  other  hand, 
the  relation  of  the  individual  partners  to  one  another  in 
matters  not  relating  to  firm  business  is  like  that  of  strangers, 
and  the)7  may  contract  with  and  sue  one  another  as  such. 
Thus,  one  partner,  may  give  his  note  to  another,  even  in  con- 
sideration of  advances  made  by  the  payee  of  the  note  in  settle- 
ment of  the  maker's  debts  to  the  firm.2  So,  one  partner  may 
sue  another  on  his  individual  note,  although  the  partnership 
business  may  not  have  been  settled  between  them.3 

One  partner  cannot,  however,  sue  another  for  any  debt  or 
claim  on  which  he  would  be  ultimately  liable  to  contribute 
as  a  partner.4  Thus,  one  partner  after  the  dissolution  of  the 
firm,  being  retained  to  defend  the  others  in  a  matter  involv- 
ing their  joint  liability,  and  incurring  a  bill  of  costs  in  such 
defense,  to  which  he  would  be  liable  to  contribute  as  partner, 
cannot  maintain  an  action  at  common  law  against  the  others 
to  recover  the  bill  of  costs.5  So,  if  one  partner  obtains  pos- 
session of  a  bill  of  exchange  drawn,  accepted  or  indorsed  by 
another  for  the  firm,  he  cannot  sue  the  other  partner  or  the 
firm  upon  it.6 

As  one  cannot  be  both  plaintiff  and  defendant  in  the  same 
suit,  a  firm  cannot  as  such  sue  one  of  its  own  members  to  re- 
cover money  obtained  by  him  on  a  draft  given  in  the  firm 
name  for  his  individual  debt.7  So,  where  the  indorsees  and 
holders  of  a  note  are  a  firm  having  one  partner  in  common 

'Jones  v.  Yates,  9  B.  &  C.  539;  Sandilands  v.  Marsh,  2  B.  &  Aid.  673;  Eapp 
v.  Latham,  lb.  795. 

"Chamberlain  v.  Walker,  10  Allen  429  (1865). 

3Jeinison  v.  Walsh,  30  lnd.  167  (1868).  This  might,  of  course,  affect  the 
amount  of  the  recovery. 

'Holmes  v.  Higgins,  1  B.  &  C.  74;  Teague  v.  Hubbard.  8  B.  &  C.  345;  S. 
C,  2  M.  &  Ry.  369. 

>Milburn  v.  Codd,  7  B.  &  C.  419. 

6Neale  v.  Turton,  4  Bing.  149;  S.  C,  12  Moore  365;  Westcott  v.  Price, 
Wright  220  (1833). 

'Blodgett  v.  Sleeper,  67  Me.  499  (1877). 


560  CAPACITY PARTNERS. 

with  the  indorsing  firm,  they  cannot  sue  the  other  indorser 
upon  the  indorsement,  omitting  the  common  partner,  aud  at 
common  law  the  omission  may  be  pleaded  in  abatement.1 
So,  one  cannot  sue  his  co-maker  on  a  note,  of  which  he  has 
become  the  sole  holder.2  And  it  has  even  been  held  that 
where  a  member  and  agent  of  a  joint  stock  company  drew 
and  indorsed  a  bill  of  exchange  on  its  account  in  his  own 
name  to  another  agent  of  the  company,  who  transferred 
k  to  a  creditor  (also  a  member)  of  the  company,  this  last 
holder  could  not  sue  the  drawer  of  the  bill.3  Where,  how- 
ever, a  joint  and  several  note  was  given  by  two  makers,  of 
whom  one  was  also  one  of  the  payees,  it  was  held  that  both 
payees  might  bring  suit  on  the  note  against  the  other  maker.4 
§  404.  Actions  against  Partnership — By  Indorsee.  —  Al- 
though a  partnership  cannot,  for  the  reason  alleged,  sue  one 
of  its  members  or  be  sued  by  him,  yet  a  firm  making  a 
note  to  one  partner  or  taking  a  note  from  him  will  be  liable 
to  a  sudsequent  indorsee  who  is  not  member  of  the  firm.5 
And  the  indorsee  can  recover  on  such  an  instrument, 
although  he  knew  of  the  partnership  and  the  relation  of 
maker  and  indorser  to  one  another.6  So,  when  a  firm  note 
is  transferred  by  the  payee  to  a  member  of  the  firm  for  value, 
his  purchase  of  the  paper  will  not  amount  to  a  payment  of 
it,  and  if  it  is  indorsed   over   by  him  to  another,  the  last 

lMainwaring  v.  Newman,  2  Bos.  &  P.  120. 

2Moffat  v.  Van  Millingen,  2  Bos.  &  P.  124?*. 

3Teague  v.  Hubbard,  8  B.  &  C.  345;  S.  0.,  2  M.  &  Ry.  369. 

*Beecham  v.  Smith,  E1.B1.  &  El.  442. 

5Morley  v.  Culverwell,  7  M.  &  W.  174;  Steele  v.  Harmer,  15  L.  J.  Exch. 
219,  14  M.  &  W.  831 ;  S.  C,  19  L.  J.  Excb.  34,  4  Excb.  1 ;  Smith  v.  Lusber,  5 
Cow.  688  (1825)  ;  Hapgood  v.  Watson,  65  Me.  510  (1876) ;  Pitcher  v.  Barrows, 
17  Pick.  361  (1835) ;  Ormsbee  v.  Kidder,  48  Vt.  361  (1875) ;  Young  v.  Chew, 
9  Mo.  App.  387  (1880).  It  cannot,  however,  be  shown  by  parol  as  to  such  a 
note  that  the  intention  was  to  transpose  the  relation  of  maker  and  indorser, 
in  order  to  excuse  a  failure  to  make  proper  presentment  and  protest,  Coon 
v.  Pruden,  25  Minn.  105  (1878).  And  where  such  a  note  has  been  destroyed 
by  an  accident  and  afterward  assigned  by  the  payee  to  another  to  enable 
him  to  bring  suit  against  the  firm,  such  assignee  has  been  held  in  Michigan 
incapable  of  suing  at  law  and  left  like  the  original  payee  to  his  remedy 
in  equity,  Davis  v.  Merrill,  51  Mich.  480  (1883). 

"Smith  v.  Lusher,  5  Cow.  688  (1825). 


ACTIONS    AGAINST    PARTNERSHIP.  5()1 

holder  may  recover  against  the  firm.1  And  the  fact  that  the 
statute  of  Massachusetts  makes  legal  defenses  against  the 
payee  of  a  demand  note  available  against  the  indorsee  also, 
will  not  destroy  the  indorsee's  right  to  recover  on  a  note 
made  by  a  firm  to  one  of  its  members  and  by  him  indorsed  to 
the  holder  because  his  indorser  could  uot  sue.2  If,  however, 
a  firm  note  to  one  member  of  the  firm  is  indorsed  after  its 
maturity  and  after  dissolution  of  the  firm,  the  indorsee  will 
take  it  subject  to  the  defense  of  an  unsettled  account  be- 
tween the  firm  and  the  individual  partner  who  is  the  payee.3 
Holders  of  scrip  in  a  joint  stock  company  are  not,  how- 
ever, such  partners  as  to  be  incapable  of  bringing  suit 
against  the  directors  of  the  company  on  a  note  made  by 
them.4  And  if  a  note  is  made  by  one  member  of  a  cor- 
poration individually  to  another  for  the  use  of  the  com- 
pany, the  maker  cannot  plead  their  common  interest  in  the 
concern  in  a  defense  of  a  suit  by  the  payee.6  Two  firms 
having  a  partner  in  common  may  stand  in  the  relation  to 
one  another  of  maker  and  indorser  on  the  same  paper,  and 
the  fact  that  a  bill  of  exchange  has  been  drawn  in  the  name 
of  one  firm  and  indorsed  in  the  name  of  the  other  in  the 
same  handwriting  by  their  common  partner  is  no  cause  of 
suspicion  or  evidence  of  bad  faith  to  put  the  purchaser  upon 
inquiry  as  to  the  character  of  the  paper.6  And  the  indorsee's 
knowledge  of  the  fact  that  the  two  firms  have  a  partner  in 
common  will  not  be  such  notice  as  will  affect  the  liability  of 
the  firm  indorsing  the  paper.7  So,  if  a  bill  of  exchange  is 
drawn  by  one  firm  upon  another  having  a  common  partner 
in  it,  and  is  accepted  by  that  partner  without  the  knowledge 

"Kipp  v.  McChesney,  66  111.  460  (1872). 

'Thayer  v.  Buffum,  II  Mete.  398  (1846). 

3 Davis  v.  Briggs,  39  Me.  304  (1855). 

*  Fox  v.  Frith,  10  M.  &  W.  131. 

6Mahan  v.  Sherman,  7  Blackf.  378  (1844). 

"Miller  v.  Consolidation  Bank,  4S  Penna.  St.  514  (1865) :  Ihmsen  v.  Negley, 
25  lb.  697  (1855). 

TStimson  v.  Whitney,  130  Mass.  591  (1881). 

2l 


562  CAPACITY PARTNERS. 

of  the  other  partners  in  the  firm  drawn  on,  the  acceptance 
will  still  be  binding  prima  facie  upon  the  firm.1 

§  405.  What  Partnerships  Cannot  Execute  Commercial 
Paper. — The  rule  which  renders  partnerships  liable  on  bills 
and  notes  executed  by  one  member  of  the  firm  only  applies 
to  firms  engaged  in  commercial  business.  Special  partner- 
ships for  other  purposes  than  trade  are  not,  in  general,  bound 
by  commercial  paper  executed  in  their  name  by  one  partner 
without  express  authority  of  the  others.2  Thus,  a  firm  of 
attorneys  at  law  will  not  be  bound  by  such  paper  executed 
by  one  member.3  Although  similar  notes,  executed  in  such 
manner  and  recognized  by  the  firm,  are  admissible  as  evi- 
dence of  an  authority  in  such  case.4  In  like  manner,  a  firm 
of  physicians  will  not  be  bound  by  a  bill  of  exchange  given 
by  one  of  them  for  the  purpose  of  raising  money.6  So,  stock 
brokers  will  not  be  bound  by  such  paper  ;6  nor  tavern  keep- 
ers ;7  nor  a  firm  of  coffee  brokers  ;8  nor  a  special  partnership 
formed  for  the  purpose  of  putting  up  a  steam  saw  mill.9  So 
partners,  engaged  in  the  business  of  carriage  building,  have 

*Tutt  v.  Addams,  24  Mo.  186  (1857). 

2Byles46;  Chitty  58,  59;  1  Edwards  2  98 ;  1  Parsons  138;  1  Daniel  328; 
Greenslade  v.  Dower,  7  B.  &  C.  635,  1  M.  &  Rv  640;  Dickinson  v.  Valpv,  10 
B.  &  C.  125 ;  S.  C,  5  M.  &  Rv  126 ;  Bramah  v.  Roberts.  3  Bing.  N.  C.  963, 5  Scott 
172;  Ricketts  v.  Bennett,  4  C.  B.  69l>  (1847) ;  Yates  v.  Dalton,  28  L.  J.  Exch. 
69(1859);  Brown  v.  Kidger,  3  H.  &  N.  853;  Ulerv  v.  Ginrick,  57  111.  531 
(1871);  ZueU.Bowen,  78  76.234(1875);  Smith  v.  Sloan,  37  Wis.  285  (1875) ; 
McCrary  v.  Slaughter,  58  Ala.  230  (1877);  Kimbro  v.  Bullitt,  22  How.  256 
(1859) ;  "Hunt  v.  Chapin,  6  Laos.  139  (1872). 

3  B  vies  46;  I  Daniel  328;  1  Edwards  §  101 ;  1  Parsons  138;  Hedley  v.  Bain- 
bridge,  3  Q.  B.  316  ;  Forster  v.  Mackreth,  L.  R.  2  Exch.  163  (1S67) ;  Garland 
v.  Jacomb,  8  lb  219  (1873) ;  Levy  v.  Pyne,  C.  &  M.  453  (1842) ;  Breckinridge 
v.  Shrieve,  4  Dana  375  (1836) ;  Smith  v.  Sloan,  37  Wis.  286  (1875)  ;  Friend  v. 
Duryee,  17  Fla.  Ill  (1879). 

4 Levy  v.  Pyne,  C.  &  M.  453  (1842). 

5Crosthwait  v  Ross,  1  Humph.  23  (1839).  But  it  is  said  in  this  case  that 
such  a  note  would  bind  the  firm  if  given  for  the  purchase  of  things  neces- 
sary to  its  business. 

6Byles  46  ;  Yates  v.  Dalton,  2S  L.  J.  Exch.  69. 

'Cocke  v.  Branch  Bank,  3  Ala.  175  (1841).  In  this  case  the  note  was  not 
given  in  the  firm  business  and  the  defense  was  allowed  against  a  bona  fide 
holder  for  value. 

"Third  Nat.  Bank  v.  Snyder,  10  Mo.  App.  211  (1881).  And  see  Huguley 
V.  Morris,  65  Ga.  ma  (1880). 

•Lanier  v.  McCabe,  2  Fla.  32  (1848). 


JOINT    PAYEES    NOT    PARTNERS.  563 

no  implied  authority  to  open  a  bank  account  in  one  another's 
names  so  as  to  charge  one  another  by  checks  upon  it.1  Nor 
can  persons  engaged  in  jointly  carrying  on  a  farm  or  planta- 
tion ;2  especially  where  all  inference  of  such  authority  is  ex- 
pressly excluded  by  the  articles  of  partnership  which  provide 
for  the  furnishing  by  one  partner  of  the  very  article  for  which 
he  gave  the  partnership  note  in  question.3 

But  collecting  agents,  doing  business  as  a  firm,  have  been 
held  liable  on  a  partnership  note  given  by  one  of  the  part- 
ners for  money  collected  by  the  firm.*  So,  a  mining  partner- 
ship may  become  liable  for  a  bill  of  exchange  given  by  the 
managing  partner  for  money  borrowed  on  the  credit  of  the 
firm  and  in  its  business,  where  such  paper  is  expressly 
mentioned  in  the  articles  of  partnership  as  a  ground  upon 
which  the  partners  may  dissolve  the  firm  if  made  for  other 
than  the  immediate  use  of  the  firm.5  And  where  a  firm  has 
actually  and  knowingly  used  property  obtained  for  it  by 
means  of  bills  of  exchange  or  notes  executed  without  au- 
thority by  its  superintendent  it  will  be  estopped  from  setting 
up  such  want  of  authority.6 

§  406.  Joint  Payees  Not  Partners — Joint  Tenants. — Where 
a  bill  or  note  is  made  payable  to  several  persons  jointly,  the 
payees  are  in  no  sense  partners  therein,  and  neither  of  them 
can  bind  the  other  by  an  indorsement  for  both.7     So,  where 

'Alliance  Bank  v.  Kearsley,  L.  R.  6  C.  P.  433  (1871). 

2  Hunt  v.  Chapin,  6  Lans.  139  (1872);  Prince  v.  Crawford,  50  Miss.  344 
(1874).     See,  ton,  Davis  v.  Richardson,  45  Miss.  499  (1871). 

3MeCrary  v.  Slaughter,  58  Ala.  230  (1877). 

4  Van  Brunt  v.  Mather,  48  Iowa  503  (1878). 

5 Brown  v.  Kidger,  3  Hurlstone  &  N.  853  (1858). 

6 Jones  v.  Clark,  42  Cal.  180  (1871). 

'Wood  v.  Wood,  1  Harr.  428  (N.  J.  1838).  But  see  Carvick  v.  Vickery, 
Dougl.  653,  where  a  bill  of  exchange  drawn  by  two  persons  payable  to  them- 
selves or  order  was  indorsed  by  one  only  and  a  recovery  was  had  under 
such  indorsement  against  the  acceptor.  In  this  case,  however,  as  observed 
by  Hornblower,  C.  J.,  in  Wood  v.  Wood,  supra,  the  acceptance  was  given 
after  the  bill  was  so  indorsed  and  transferred  to  the  plaintiff.  This  is  true 
also  of  the  indorsement  of  a  note  made  payable  to  two  persons  as  executors, 
Smith  v.  Whiting,  9  Mass.  334  (1812);  Sanders  v.  Blain.  6  J.  J.  Marsh.  446 
(1831) ;  Johnson  v.  Mangum,  65  N.  G.  146  (1871).  And  if  a  note  is  payable 
to  A.  and  B.,  who  are  not  partners,  and  indorsed  in  both  names  by  A.  with 
B.'s  consent,  B  's  interest  will  be  transferred  by  the  indorsement,  Cooper  v. 
Bailev,  52  Me.  230. 


564  CAPACITY PARTNERS. 

two  employ  a  common  factor  who  draws  a  bill  on  them, 
neither  can  bind  the  other  by  his  acceptance  of  it.1  Sor 
where  two  persons  buy  a  farm  under  an  agreement  to  pay 
for  it  in  notes  indorsed  by  them  both,  they  do  not  become 
partners,  and  neither  one  has  power  to  indorse  such  notes 
for  the  other.2 

In  like  manner,  joint  owners  of  property  are  not  partners 
who  can  bind  one  another  by  a  bill  or  note.3  This  is  true 
even  where  the  persons  are  joint  owners  of  a  ship  and  one 
gives  an  acceptance  for  necessaries  furnished  for  it.4  So, 
joint  tenants  and  tenants  in  common  of  property  real  or 
personal  have  no  power  to  bind  one  another  as  partners  by 
their  commercial  paper.0  Neither  can  persons  bind  one 
another  as  such  because  of  their  common  interest  in  a  joint 
undertaking,  but  such  paper  must  be  signed  by  all  the 
parties  interested.6  It  has  been  held,  however,  that  where 
two  persons  are  jointly  interested  in  disposing  of  a  quantity 
of  salt,  and  the  whole  business  and  sale  of  it  is  put  into  the 
hands  of  one,  they  are  limited  partners  in  trade,  and  one 
may  bind  both  by  a  note  given  in  their  joint  name  as  a  firm 
for  expenses  necessarily  incurred  in  the  business.7 

Where  creditors  are  put  in  possession  of  the  property  of 
their  debtor,  and  carry  on  the  business  jointly  for  their  re- 
payment, they  are  not  partners  on  that  account,  nor  liable  as 
such  on  an  acceptance  given  by  one  in  the  original  firm 
name  of  the  debtor.8  But  it  has  been  held  that  the  mem- 
bers of  an  unincorporated  club,  purchasing  bonds  for  their 
own  use  through  an  authorized  agent,  are  liable  as  partners 
for  a  note  given  in  payment  by  the  agent,  so  far  as  they 

Shitty  73. 

'Ballou  v.  Spencer,  4  Cow.  163  (1825). 

3Chitty  58;  1  Daniel  327;  1  Edwards  \  94;  Ex  parte  Peele,  6  Ves.  604; 
Williams  v.  Thomas,  6  Esp.  18. 

*  Williams  v.  Thomas,  6  Esp.  18;  Reed  v.  White,  5  Esp.  122. 

6Offley  v.  Ward,  1  Lev.  234;  Tooker's  Case,  2  Co.  67;  Lingan  v.  Payne 
Bridgman  129. 

'Ex  parte  Hunter,  2  Rose  363. 

TCumpston  v.  McNair,  1  Wend.  457  (1828). 

8Byles  46;  Cox  v.  Hickman,  8  H.  L.  C.  268;  S.  C,  9  C.  B.  (n.  s.)  47. 


PARTNERSHIP    NAME.  565 

have  authorized  or  ratified  the  transaction.1  Where  a  part- 
nership is  of  limited  or  of  special  character,  knowledge  of 
such  limitation  may  be  iuferred  from  circumstances,  e.  g.  from 
publication  in  the  public  Gazette;  and  this  will  amount  to 
constructive  notice  to  persons  dealing  with  the  firm.2 

§  407.  Partnership  Name. — The  proper  form  for  the  exe- 
cution of  paper  by  a  partnership  has  been  already  considered 
in  an  earlier  part  of  this  work.  The  proper  name  of  the 
firm  should  always  be  used.  If  the  name  be  varied,  in  gen- 
eral, the  firm  will  not  be  liable  without  its  consent  to  the 
name  used,  unless  such  name  substantially  describes  the 
firm.3  Thus,  it  has  been  held  that  a  firm,  doing  business  as 
"  Dry  &  Everett,"  will  not  be  liable  on  a  note  executed  as 
"  Dry  and  Co."4  Nor  a  firm,  doing  business  in  the  name  of 
"  John  Blurton,"  on  a  note  executed  in  the  name  of  "  John 
Blurton  &  Co."5  Nor,  on  the  other  hand,  a  firm  named 
"  Wra.  Smith  &  Co.,"  on  an  indorsement  in  the  name  of 
"Wm.  Smith."6  But  an  indorsement  in  the  name  of  one 
partner  "  &  Co.,"  was  held,  in  an  early  New  York  case,  suf- 
ficient to  bind  a  firm  which  had  always  been  known  by  the 
name  of  another  partner  "  &  Co."7 

A  different  name  from  that  actually  belonging  to  the  firm 
and  commonly  used  by  it,  may  be  adopted  by  it  and  will 
then  be  sufficient  to  bind  it,  e.  g.  "  Elias  Malone  &  Co.,  Still 
House,"  instead  of  the  regular  firm  name  "Elias  Malone."8 

'Ferris  v.  Thaw,  5  Mo.  App.  279  (1878). 

2  Livingston  v.  Koosevelt,  4  Johns.  251  (1809). 

sByles  45;  1  Daniel  331;  1  Parsons  135;  Williamson  v.  Johnson,  1  B.  & 

C.  146;  2D.&R.  281 ;  Faith  v.  Richmond,  11  Ad.  &  El.  339;    S.  C,  3  Per.  & 

D.  187;  Forhes  v.  Marshall,  11  Exch.  166;  Stephens  v.  Reynolds,  5  Hurlst. 
&  N.  513,  29  L.  J.  Exch.  278. 

4B\ies  45 ;  Sheppard  v.  Dry,  Norwich  1840  Cor.  Parke,  B.,  affirmed  in  Q.  B. 

°Kirk  v.  Blurton,  9  M.  &  W.  2S4.  But  see  Stephens  v.  Reynolds,  5  H.  & 
N.  513  (1S60) ;  Maclae  v.  Sutherland,  3  El.  &  Bl.  36  (1854). 

'Alabama  Coal,  &c  ,  Co.  v.  Brainard,  35  Ala.  476  (1860).  But  such  indorse- 
ment will  effect  an  equitable  transfer  of  the  interest  of  the  firm,  lb.  And 
where  the  payees  named  as  a  firm  were  named  by  a  fictitious  name,  rightful 
title  will  he  presumed  in  n,  bona  fitle  ho\dev  from  possession  under  an  indorse- 
ment in  the  assumed  name  by  one  of  the  actual  payees,  Blodgettu.  Jackson, 
40  N.  H.  21  (1859). 

'Drake  v.  Eiwyn,  I  Gaines  1S4  (1S03). 

'Moffat  v.  McKissick,  8  Baxt.  517  (1875).     In  Voorhees  v.  Jones,  5  Dutch. 


566  CAPACITY PARTNERS. 

And  where  a  fictitious  name  is  used  by  the  firm,  this  will 
bind  it.1  So,  where  a  partnership  is  formed  for  the  publica- 
tion of  a  newspaper  called  "  The  Opinion,"  an  acceptance 
given  by  one  partner  before  the  formation  of  the  firm,  in  his 
own  name,  "For  the  Opinion,"  for  goods  purchased  for,  and 
afterwards  used  by,  the  firm  will  be  binding  upon  it." 
This  has  been  held,  too,  of  a  note  signed  by  the  individual 
name  of  one  partner  "  for  the  use  of"  the  firm.3  And  where 
a  firm  consisting  of  two  partners  has  been  dissolved,  and  a 
new  firm  formed  under  a  new  name  by  the  addition  of  a 
third  partner,  a  bill  signed  by  one  of  the  original  partners  in 
the  name  of  the  old  firm  and  indorsed  by  the  new  partner 
for  the  use  of  the  new  firm  in  its  new  name,  will  be  binding 
upon  the  other  original  partner  also  as  a  member  of  the  new 
firm.4 

§  408.  Joint  Names. — It  will  be  sufficient  execution  by  a 
firm  if  the  joint  names  of  all  the  partners  be  signed  to  the 
paper.5  But  where  a  joint  note  was  made  by  partners  in 
their  individual  names  payable  to  their  own  order,  an  in- 
dorsement by  one  only  was  held  to  be  insufficient  by  the 
custom  of  London,  notwithstanding  that  such  persons  had 
been  found  to  be  partners  in  the  transaction.6  And  a  firm 
has  been  held  to  be  bound  by  the  note  of  one  partner  given 
for  the  firm  business  in  the  joint  names  of  all.7     So,  too,  joint 

270  (1861),  a  recovery  was  had  against  four  partners,  where  a  note  had  been 
given  signed  in  the  name  of  only  two  of  them.  The  matter  discussed 
and  decided  in  this  case,  however,  is  the  fact  of  partnership,  and,  so  far  as 
appears  in  the  reported  case,  the  recovery  may  have  been  upon  the  com- 
mon counts.  The  name  of  the  two  partners  had  been  adopted  by  formal 
agreement  for  the  joint  business  of  all  four. 

^hicknesse  v.  Bromilow,  2  Cromp.  &  J.  425. 

2Markham  v.  Hazen,  48  Ga.  570  (1873). 

3Dow  v.  Moore,  47  N.  H.  419  (1867).  For  cases  showing  the  manner  in 
which  a  bill  or  note  should  be  signed  for  a  firm,  see  chapter  on  Form,  supra. 

*  Bacon  v.  Hutchings,  5  Bush  595  (1869). 

5Chitty  72;  1  Daniel  331;  1  Parsons  136;  Maclae  v.  Sutherland,  3  El.  & 
Bl.  36 ;  Norton  v.  Seymour,  3  C.  B.  792 ;  In  re  Warren,  Davies  320.  But  see, 
contra,  Buff'um  v.  Seaver,  16  N.  H.  160  (1844);  Gay  v.  Johnson,  45  lb.  587 
(1864).  At  least  it  is  not  prima  facie  a  firm  bill  or  note,  Richardson  v.  Hug- 
gins,  23  N.  H.  106  (1851);  unless  it  be  shown  that  the  firm  has  no  firm 
name,  McGregor  v.  Cleveland,  5  Wend.  475  (1830). 

'Carvick  v.  Vickery,  Dougl.  653.     As  to  this  case,  see  Chitty  72. 

'Byles  45;  Cross  v.  Cheshire,  21  L..  J.  Exch.  3  :  Norton  v.  Seymour,  3  C. 


JOINT    NAMES.  567 

debtors  who  are  not  partners  will  both  be  bound  by  a  note 
given  in  their  joint  names  by  one,  if  the  other  has  promised 
to  pay  it  with  full  knowledge  of  the  way  in  which  it  was 
signed.1  So,  a  partner  may  be  bound  by  a  note  given  in  the 
firm  business  by  his  partner  in  their  individual  names,  al- 
though he  had  issued  a  circular  stating  that  the  firm  business 
would  be  carried  on  in  another  name.2  And  where  a  part- 
nership note  is  renewed  after  dissolution  of  the  firm  by  a  note 
signed  by  the  individual  names  of  the  partners,  there  will  be 
no  change  of  liability  unless  specially  so  intended,  and  both 
partners  will  remain  liable.3 

In  like  manner,  where  a  note  was  signed  by  two  partners 
in  their  individual  names  and  by  sureties  who  were  induced 
to  sign  by  a  representation  that  it  was  for  the  accommodation 
of  the  firm,  the  proceeds  having  been  used  by  the  firm,  the 
firm  will  not  be  discharged  by  a  renewal  afterwards  by  one 
partner  with  the  same  sureties.4  So,  one  partner  cannot 
deny  the  authority  of  the  other  to  bind  him  before  the  adop- 
tion of  a  firm  name,  by  a  note  signed  by  him  with  their  indi- 
vidual names  and  given  for  goods  purchased  by  him,  which 
have  been  entered  in  the  books  of  the  firm  and  sold  for  its 
benefit.5  And  where  an  accommodation  indorser  for  a  firm 
has  paid  a  note  signed  by  one  partner  as  maker  and  by  the 
other  as  indorser,  it  has  been  held  that  the  action  will  lie 
against  the  firm  for  money  paid  for  its  use.6  If  a  note  be- 
ginning "I promise"  &c,  is  signed  by  the  individual  names 
of  two  or  more  persons,  it  may  be  treated  as  either  joint  or 
several.7      But  it  has  been  held,  on  a  question  of  priority 

B.  792(1847);  Maelae  v.  Sutnerland,  3  E!.  &  Bl.  34  (1854);  McGregor  v. 
Cleveland,  5  Wend.  475  (1830) ;  Filler  v.  Phelps,  18  Conn.  301  (1847) ;  Trow- 
bridge v.  Cushman,  24  Pick.  310  (1836). 

1  Waite  v.  Foster,  33  Me.  424  (1851). 

2  Norton  v.  Seymour,  3  C.  B.  792  (1847). 
3M;iynard  v.  Fellows,  43  N.  H.  255  (1864). 
'McKee  v.  Hamilton,  33  Ohio  St.  7  (1877). 
6Kitner  v.  Whitlock,  88  111.  513  (1878). 

6Thayer  v.  Smith,  116  Mass.  363  (1874).     See,  too,  In  re  Warren,  Davie8 
820. 

7March  v.  Ward,  Peake  130;  Clark  v.  Blackstock,  Holt  474. 


568  CAPACITY PARTNERS. 

among  creditors,  that  a  note  signed  by  the  individual  names 
of  the  partners  is  not  of  itself  evidence  of  a  partnership 
debt.1 

§  409.  Individual  Name — When  Binding  on  Firm. — One 
partner  may  bind  a  partnership  by  a  bill  drawn  on  it  in  his 
individual  name  for  a  firm  debt;2  or  by  an  acceptance  in  his 
individual  name  of  a  bill  drawn  on  the  firm;3  or  by  an  in- 
dorsement in  the  firm  name  of  a  bill  drawn  in  a  fictitious 
name.4  And  it  is  said  that,  where  a  note  is  made  payable  to 
two  persons  by  name  and  indorsed  by  one  in  his  own  name,  it 
will  be  presumed  that  the  payees  are  a  firm  and  that  the  in- 
dorser  is  one  of  them.5  But  where  the  agent  of  a  company 
drew  a  bill  in  his  own  name  upon  some  of  the  members,  with 
their  consent,  to  discharge  a  debt  of  the  company,  and  the  bill 
was  accepted  by  such  drawees  and  afterward  transferred,  only 
those  accepting  it  (and  not  the  company,  as  such,)  were  held 
to  be  liable  on  it  to  the  holder.6  But  if  their  name  had  been 
adopted  and  used  for  the  company  by  its  consent  and  with 
the  intention  of  binding  it,  it  would  have  been  otherwise. 
So,  an  agent  authorized  to  make  notes  for  a  firm  cannot  by 
a  note  in  the  individual  name  of  one  partner  bind  either  the 
individual  or  the  firm,  unless  that  name  is  adopted  by  the 
firm.7 

*Gay  v.  Johnson,  45  N.  H.  587  (1864). 

2Dougal  v.  Covvles,  5  Day  511  (1813).  And  such  bill  is  equivalent  to  an 
acceptance  by  the  firm,  lb.;  1  Parsons  135. 

sByles  44;  Chitty  73;  1  Daniel  332;  1  Edwards  g  107 ;  1  Parsons  135; 
Mason  v.  Bumsey,  1  Campb.  384;  Jenkins  v.  Morris,  16  M.  &  W.  879;  Ste- 
phens v.  Reynolds,  5  H.  &  N.  513,  29  L.  J.  Exch.  278;  Tolman  v.  Hanrahan, 
44  Wis.  133  (1878) ;  Parnell  v.  Phillips,  55  Ga.  618  (1876).  But  see,  contra. 
Heenan  v.  Nash,  8  Minn.  407  (1862),  where  it  is  held  that  such  acceptance 
will  not  even  bind  the  partner  who  gives  it. 

'Byles  45  ;  1  Parsons  130;  Thicknesse  v.  Bromilow,  2  C.  &  J.  425.  And  it 
seems  that  an  indorsement  may  be  sufficient  to  effect  a  transfer,  although 
insufficient  to  bind  the  firm  as  indorsers,  Smith  v.  Johnson,  3  Hurlst.  &  N. 
222  (1858).  At  least  to  transfer  the  equitable  title,  Alabama  Coal  Mining 
Co.  v.  Brainerd,  35  Ala.  476  (1860). 

5McConeghy  v.  Kirk,  68  Penna.  St.  200  (1871).  The  sufficiency  of  the 
indorsement  in  this  case  was  admitted  by  a  subsequent  indorsement. 

6Bogers  v.  Coit,  6  Hill  322  (1844). 

'Palmer  v.  Stephens,  1  Den.  471  (1845).  And  he  may  show  an  adoption 
of  such  name  by  the  firm,  or  even,  it  seems,  by  its  managing  partner  for  it, 
76. 


INDIVIDUAL    NAME.  569 

The  individual  names  of  the  partners  may  be  so  used  as 
to  give  the  appearance  of  a  joint  or  partnership  obligation. 
Thus,  where  one  person  has  obtained  the  signature  of  another 
without  any  indication  of  the  character  of  the  second  as  a 
surety,  and  a  third  person  has  afterwards  signed  the  note  as 
surety,  supposing  the  first  two  to  be  joint  principals,  the  first 
two  being  in  fact  partners,  the  second  signer  will  have  no 
claim  for  contribution  against  the  third  as  a  co-surety.1  Or, 
if  the  consideration  is  a  joint  one,  the  contract  in  the  indi- 
vidual names  may  also  be  joint.  Thus,  if  one  member  of 
the  firm  makes  a  note  which  is  indorsed  successively  by  the 
other  members  and  given  for  money  used  by  the  firm,  such 
indorsers  are  sometimes  presumed  to  be  guarantors,  and  in 
such  case  an  alteration  by  the  partner  making  the  note  will 
not  discharge  the  partners  indorsing  it,  but  all  will  be  liable 
as  a  firm.2 

§  410.  Individual  Name — Firm  Contract. — In  general, 
however,  a  firm  will  not  be  bound  by  a  bill  or  note  given 
by  one  partner  in  his  own  name,  even  though  the  proceeds 
go  to  the  firm  or  are  applied  in  payment  of  its  debts.3  And 
this  is  true  although  the  bill  be  expressed  to  be  drawn  "on 
account  of"  the  firm.4  In  many  such  cases  the  intention  to 
substitute  an  individual  liability  is  apparent.  Thus,  if  a 
partnership  debt  be  paid  by  the  note  of  an  individual  part- 
ner with  outside  collateral  given  to  secure  it,  the  firm  will  be 
discharged.6  So,  where  several  firms  are  associated  in  a  joint 
business  but  not  registered  as  a  company,  bills  of  exchange 

'Wells  v.  Miller,  66  N.  Y.  255  (1876). 

"Pahlmah  v.  Taylor,  75  111.  629  (1874). 

3Byles44;  Chitty72:  1  Daniel  330;  1  Parsons  130;  Siffkin  v.  Walker,  2 
Campb.  308;  Emly  v.  Lye,  15  East  7  (1812);  Ex  parte  Emly,  1  Rose  61; 
Nicholson  v.  Ricketts,  29  L.  J.  Q.  B.  55;  McCauley  v.  Gordon,  64  Ga.  221 
(1879);  Logan  v.  Bond,  13  Ga.  192  (1853);  Holmes  v.  Burton,  9  Vt.  252 
(1837);  Macklin  v.  Crutcher,  6  Bush  401  (1869),  overruling  pro  tanto  Hikes 
v.  Crawford,  4  lb.  19.  This  is  true  even  though  the  firm  might  l>e  liable 
to  suit  as  for  money  lent,  Emly  v.  Lye,  15  East  7  ;  Denton  v.  Rodie,  3  Campb. 
493.  In  this  last  case  the  firm  had  authorized  the  bill  in  question,  which 
was  drawn  on  them  by  one  partner  for  their  use,  and  had  recognized  and 
accepted  similar  bills  before  their  failure. 

'Cunningham  v.  Smithson,  12  Leigh  32  (1841). 

4 Adams  v.  Reid,  06  Ga.  214  (1876). 


570  CAPACITY— PARTNERS. 

and  acceptances  drawn  in  the  joint  business,  some  by  one' 
firm  and  some  by  another,  will  bind  the  firms  signing  or 
accepting  them  and  not  the  associated  firms.1  So,  where  a 
note  payable  on  demand  is  given  by  one  partner  after  the 
absconding  of  the  other,  in  renewal  of  a  note  payable  at  a 
future  time,  the  absconding  partner  will  not  be  bound  by 
the  renewal.2 

But  it  has  been  held  that  if  a  note  is  given  by  one  partner 
in  his  own  name  for  money  loaned  to  tke  firm,  and  the  pro- 
ceeds are  received  and  used  by  the  firm,  it  will  be  bound  by 
the  note.3  This  liability  extends,  however,  only  to  cases 
where,  if  the  firm  name  has  not  been  used,  credit  has  at  least 
been  given  to  the  firm.4  A  firm  will  be  liable  on  such  paper 
where  the  benefit  has  been  received  by  it  and  the  credit 
given  to  it.5  And  in  such  case  an  indorser,  who  has  been 
obliged  to  pay  the  note,  may  enforce  a  lien  for  the  claim 
against  partnership  assets  in  his  hands.6  Even  where  a 
firm  business  has  been  carried  on  in  the  name  of  one  part- 
ner, it  has  been  held  that  indorsements  in  his  name  will 
only  bind  the  firm  where  they  were  received  as  its  indorse- 
ments upon  a  representation  to  that  effect  and  were  made  in 
the  firm  business.7  So,  where  a  note  has  been  given  by  one 
partner  for  corn  sold  to  both,  on  a  representation  by  the 
maker  that  he  gave  the  note  on  the  partnership  account, 
both  have  been  held  liable  on  it.8 

A  firm  may  become  liable  on  paper  executed  in  its  name, 
though  running  in  the  words  "I  promise,"  &c.9     Again,  two 

Un  re  Adansonia  Fibre  Co.,  L.  R.  9  Ch.  635  (1874). 

"Whitman  v.  Leonard,  3  Pick.  177  (1825). 

3  Whitaker  v.  Brown,  16  Wend.  505  (1836). 

'National  Bank  of  Salem  v.  Thomas,  47  N.  Y.  15  (1871). 

6PtK'kett  v.  Stokes,  58  Tenn.  442  (1873).  See,  too,  In  re  Warren,  Daviea 
320,  where  it  is  said  that  such  name  will  he  presumed  to  have  been  taken 
by  choice  by  the  partners  for  their  use.  But  this  presumption  may  be  re- 
butted by  proof  to  the  contrary,  lb. 

6 Foster  v.  Hall,  4  Humph.  345  (1843). 

'United  States  Bank  v.  Binney,  5  Mason  176  (1828). 

8Seekell  v.  Fletcher,  53  Iowa  330  (1880)  ;  Ontario  B.ink  v.  Hennessy,  48  N. 
Y.  545  (1872);  Woodward  v.  Winship,  12  Pick.  430  (1832). 

"Doty  v.  Bates,  11  Johns.  544  (1814).     Especially  where  the  note  was  signed- 


INDIVIDUAL    NAME    SAME    AS    FIRM    NAME.  571 

partners  may  become  severally  liable  upon  a  joint  and  several 
note  executed  in  the  firm  name  by  one  and  ratified  after- 
wards by  a  confession  of  judgment  by  the  other.1 

§  411.  Individual  Name  Same  as  Firm  Name. — Where  the 
name  of  an  individual  partner  is  also  the  name  of  the  firm, 
and  the  bill  or  note  in  question  is  given  in  such  name  and 
for  the  benefit  of  the  firm,  all  the  partners  will  of  course  be 
liable  on  it.2  So,  where  the  firm  business  is  carried  on  in 
the  name  of  one  partner,  and  a  bill  addressed  to  such  name 
is  accepted  by  the  other  partner  in  his  own  name,  and  the 
proceeds  go  to  the  partnership  business,  the  firm  will  be 
bound  by  the  acceptance.3  If  a  firm  without  indorsement 
holds  a  note  made  payable  to  one  of  its  members  and  given 
for  money  loaned  by  the  firm,  it  will  not  be  such  a  bona  fide 
holder  for  value  as  to  exclude  the  defense  of  illegality  of 
consideration.4  But  where  a  note  is  given  to  one  partner, 
and  suit  is  brought  on  it  by  him  for  the  use  of  the  firm,  it  is 
unnecessary  to  join  the  other  partners  as  plaintiffs,  and  a 
counterclaim  against  the  firm  cannot  be  set  up  in  defense.0 
And  the  mere  fact  of  money  obtained  on  one  partner's  indi- 
vidual note  being  applied  to  the  business  of  the  firm  will  not 
make  the  note  a  partnership  debt,  but  a  dormant  partner 
will  be  liable  in  such  case  on  the  common  counts.6     Where 

"  For  A.  B.  &  Co.,  A.,"  Lord  Galwav  v.  Matthews,  1  Campb.  403 ;  Smith  v. 
Jarves,  3  Ld.  Raym.  1484;  In  re  Clarke,  14  M.  &  W.  469.  And  it  has  been 
held  in  such  case  that  the  holder  might  sue  the  individual  signer  or  the 
firm,  Hall  v.  Smith,  IB  &  C.  407 ;  S.  C,  2  Dowl.  &  R.  584;  March  v.  Ward, 
Peake  130;  Clark  v.  Blackstock,  Holt.  C.  N.  P.  474.  But  as  to  this  point,  see 
contra,  In  re  Clark,  14  M.  &  \Y.  469,  overruling  Hall  v.  Smith,  1  B.  &  C.  4u7  ; 
S.  C,  2  D.  &  R.  504  (1845).  And  the  holder  of  such  note  cannot  prove  his 
claim  in  bankruptcy  against  the  separate  estate  of  the  individual  signer, 
Ex  parte  Christie,  3  Mont.  D.  &  DeG.  736. 

'Sherman  v.  Christy,  17  Iowa  322  (1864) ;  Easley  v.  Christy,  lb. 

2Byles  44;  Chittv  56,73;  1  Daniel  335;  1  Parsons  131;  South  Carolina 
Bank  v.  Case,  8  B.  &  C.  427 ;  S.  C,  2  M.  &  Ry.  459  ;  Nicholson  v.  Rickctts,  29 
L.  J.  Q  B.  55;  Smith  v.  Craven,  1  Cromp.  &  J.  507.  See,  too,  Swan  v. 
Steele,  7  East  210;  Ex  parte  Bolit  ho,  1  Buck  100;  Thicknesse  v.  Bromilow, 
2  C  &  J.  425.  So,  also,  if  made  in  the  firm  business,  Buckner  v.  Lee,  8  Ga. 
285  (1850). 

•Stephens  v.  Reynolds,  5  H.  &  N.  513  (1860). 

4 Norton  v.  Pickens,  21  La.  An.  575  (1869). 

'Mynderse  v.  Snook,  1  Lans.  488  (1869). 

•Graeff  v.  Hitchman,  5  Watts  454  (1836). 


572  CAPACITY PARTNERS. 

two  partners  transact  business  in  the  name  of  one  and  give 
notes  as  such  in  that  business,  the  surviving  dormant  partner 
may  be  sued  by  an  indorsee  after  the  death  of  the  partner 
whose  name  was  used.1  If  the  bank  account  of  a  firm  is 
kept  in  the  name  of  one  partner,  this  is  so  far  an  adoption  of 
that  name  by  the  firm  and  his  check  will  bind  the  firm.2 
But  where  a  firm  transacts  business  in  the  individual  name 
of  one,  and  a  bill  is  drawn  in  that  name  and  accepted  by 
the  other  in  his  individual  name,  and  both  partners  become 
bankrupt,  their  separate  estates  will  be  liable  to  a  holder  not 
knowing  of  the  partnership,  and  not  their  joint  estate.3 

§  412.  Presumption  as  to  Individual  Name. — Where  the 
name  of  an  individual  partner  is  the  same  as  that  of  the 
firm,  the  paper  executed  in  such  name  is  presumptively  that 
of  the  individual  and  not  of  the  firm.4  But  this  presump- 
tion may  be  rebutted  by  parol  evidence.6  And  a  contrary 
presumption  has  been  made  in  the  case  of  a  loan  to  one  who 
carried  on  his  partnership  and  private  business  in  the  same 
individual  name  and  gave  his  check  in  payment.6  Bills  and 
notes  given  to  a  person  carrying  on  business  in  such  a  way 
are  presumably  made  to  him  individually.7  Although  it  was 
formerly  held  that  where  the  individual  and  the  firm  name 
were  the  same,  the  holder  of  paper  given  in  such  name  might 
elect  between  them.8     And  where  two  firms  have  the  same 

^cott  v.  Colmesnil,  7  J.  J.  Marsh.  416  (1832).  See,  too,  In  re  Warren, 
Davies  320. 

"Crocker  v.  Colwell,  46  N.  Y.  212  (1871). 

sEx  parte  Husbands,  2  Glyn  &  J.  4. 

4Chittv56;  Byles49;  1  Daniel  334;  1  Edwards  \  107;  Ex  parte  Bolitho, 
1  Buck  100;  Wintlet;.  Crowther,  1  Cromp.  &  J.  316  ;  S.  C,  1  Tyrw.  210 ;  Furze 
v.  Sharswood,  2  Q.  B.  388 ;  Bank  of  Rochester  v.  Monteath,  1  Denio  402  (1845)  ; 
Manufacturers'  Bank  v.  Winship,  5  Pick.  11  (1827);  Mercantile  Bank  v. 
Cox,  38  Me.  500  (1854);  National  Bank  v.  Ingraham,  58  Barb.  290  (1870). 
But  where  the  individual  partner  carried  on  no  separate  business,  a  con- 
trary presumption  was  had  in  Yorkshire  Banking  Co.  v.  Beatson,  L.  R.  5  C.  P. 
D.  109  (Ct.  App.  1880),  affirming  L.  R.  4  C.  P.  D.  204.  In  this  case  the  note 
was  proved  to  have  been  authorized  by  the  firm  and  made  in  its  business. 

6Trowbridge  v.  Cushman,  24  Pick.  310  (1836). 

6 Mifflin  v.  Smith,  17  Serg.  &  R.  165  (1828). 

71  Parsons  131;  Boyle  v.  Skinner,  19  Mo.  82  (1853). 

•Byles  45;  Hall  ?>.  Smith,  1  B.  &  C.  407;  S.  C,  2  D.  &  R.  484;  March* 
Ward,  Peake  130;  Wilks  v.  Back,  2  East  142. 


PARTNERSHIP  PAPER  FOR  INDIVIDUAL  DEBTS.  573 

name,  and  a  bill  of  exchange  is  given  by  one  who  is  a  mem- 
ber of  both  firms,  it  has  been  held  that  the  holder  may  elect 
which  of  the  two  firms  he  will  look  to  for  payment.1 

§  413.  Partnership  Paper  for  Individual  Debts. — The  au- 
thority which  members  of  a  firm  have  to  bind  one  another 
by  the  execution  of  commercial  paper  extends  only  to  the 
firm  business,  although  there  is  often  an  implied  authority 
in  favor  of  bona  fide  holders  of  such  paper  who  are  ignorant 
of  the  original  consideration  for  it.  The  general  principle, 
however,  is  that  no  member  of  a  firm  can  bind  the  other  by 
giving  or  indorsing  commercial  paper  in  its  name  for  an 
individual  debt  or  purpose  of  his  own.2  And  an  indorser  of 
a  note  may  avail  himself  of  the  defense  that  the  partner 
making  it  did  so  for  an  individual  debt  of  his  own.3  If  a 
note  is  given  to  a  firm  for  money  due  one  partner,  with  a 
concurrent  contemporaneous  agreement  in  writing  between 
that  partner  and  the  maker  of  the  note  for  its  payment  by 
house  rent  to  said  partner,  such  agreement  must  be  construed 
with  the  note  and  forms  one  contract  with  it,  binding  as  well 
upon  the  firm  as  upon  the  individual  partner  making  it.4 
But  one  partner  may  not  bind  his  firm  by  agreeing  that  a 
note  payable  to  the  firm  shall  be  credited  on  an  individual 
account  against  him.5  If,  however,  one  partner  indorses  on 
a  note  which  belongs  to  the  firm  a  part  payment  in  satisfac- 
tion of  his  individual  debt,  the  firm  cannot  in  an  action  at 

1Byles49;  Chitty58;  Baker  v.  Charlton,  Peake  80;  McNair  v.  Fleming, 
Mont.  32;  Swan  v.  Steele,  7  East  210.  But  see  Ex  parte  Buckley,  14  M.  & 
W.  469.  And  such  right  to  elect  may  be  often  controlled  by  the  circum- 
stances under  which  the  paper  is  taken,  1  Parsons  137. 

"Babcock  v.  Stone,  3  McLean  172  (1843) ;  Union  Nat.  Bank  v.  Underbill, 
21  Hun  178  (1880);  Gale  v.  Miller,  54  N.  Y.  536  (1874),  affirming  1  Lans. 
451  (1S68) ;  44  Barb.  420  (1865) ;  Atkin  v.  Berry,  1  B.  J.  Lea  91  (1878)  ;  Me- 
chanics', &c,  Ins.  Co.  v.  Richardson,  33  La,  An.  1308  (1881);  Mutual  Nat. 
Bank  v.  Richardson,  lb.  1312  (1881)  ;  Lime  Rock,  &c,  Ins.  Co.  v.  Treat,  58 
Me.  415  (1870).  See,  too,  Ex  parte  Goulding,  2  Glyn.  &  J.  118;  Ex  parte 
Thrope,  3  Mont.  &  Ayr.  716.  And  if  the  individual  partner  signing  such  a 
note  die,  his  representatives  ami  not  the  surviving  partners  will  be  liable, 
Lill  v.  Egan,  89  111.  609  (1878). 

sWilliams  v.  Walbridge,  3  Wend.  415  (1829);  Livingston  v.  Hastie,  2 
Caines  246;  Rolston  v.  Click,  1  Stew.  526  (Ala.  1828);  Hagar  v.  Mounts,  3 
Blackf.  57  (1832). 

♦Bradley  v.  Marshall,  54  111.  173  (1870). 

5  Harper  v.  Wringley,  48  Ga.  495  (1873). 


574  CAPACITY PARTNERS. 

law  disregard  or  rescind  such  indorsement  and  recover  the 
whole  amount  of  the  debt.1  A  note  by  one  partner  in  the 
name  of  the  partnership  for  money  collected  by  him  indi- 
vidually will  not  bind  the  firm  at  suit  of  the  payee.2  But  if 
the  money,  so  collected  by  him  as  agent  of  the  payee  of  the 
note,  had  been  borrowed  by  him  and  applied  to  the  business 
of  the  firm,  his  note  in  the  firm  name  would  bind  it ;  the 
presumption  of  a  firm  debt  arising  from  the  form  of  the  note, 
and  the  burden  not  falling  in  the  first  instance  upon  the 
holder  to  show  either  the  application  of  the  money  or  the 
assent  of  the  firm.3 

§  414.  Defense — When  Admissible. — If  a  partnership  note 
be  given  for  the  individual  debt  of  one  partner,  .the  firm 
may  avail  itself  of  that  defense  against  a  purchaser  of  the 
note  after  maturity.4  And,  in  general,  such  defense  can  be 
set  up  against  any  holder  who  takes  the  instrument  with 
knowledge  of  the  fact.5  But  unless  the  holder  knew  or  had 
reason  to  believe  that  the  partner  giving  such  paper  was 
abusing  his  authority  for  his  own  benefit,  the  firm  will  be 
bound  by  it.6  If  the  partner  had  signed  his  individual  name 
to  a  note  before  that  of  the  firm,  this  is  proper  evidence  for 
the  jury  to  consider  in.  determining  whether  the  holder  had 
such  reason  to  know  the  actual  circumstances  of  the  case.7 

"Craig  v.  Hulschizer,  5  Vroom  363  (1871).  Bat  a  receipt  by  one  of  the 
firm  to  which  the  note  belongs  for  his  individual  debt  to  the  maker  has 
been  held  not  to  be  binding  upon  partnership  creditors,  Mayer  v.  Garber, 
53  Iowa  689  (1880). 

2  Hickman  v.  Reineking,  6  Blackf.  387  (1843). 

3  Whitaker  v.  Brown,  16  Wend.  505  (1836). 
4Whitaker  v.  Brown,  11  Wend.  75  (1833). 

B  Wintle  v.  Crowther,  1  Cromp.  &  J.  316;  Joyce  v.  Williams,  14  Wend.  141 
(183r>);  Livingston  v.  Roosevelt,  4  Johns.  251  (1809);  Lansing  v.  Gaine,  2 
16.  300  (1807) ;  Lanier  v.  MeCabe,  2  Fla.  32  (1848) ;  Noble  v.  McClintock,  2 
Watts  &  S.  152  (1841) ;  Gansevoort  v.  Williams,  14  Wend.  133  (1835) ;  Hunt- 
ington v.  Lyman,  D.  Chip.  438  (1824);  Baird.v.  Cochran,  4  Serg.  &  R.  397 
(1818) ;  Weed  v.  Richardson,  2  Dev.  &  B.  535  (1837) ;  Williams  v.  Gilchrist, 
11  N.  H  535  (1841);  Taylor  v.  Hillyer,  3  Blackf.  433  (1834);  Sherwood  v. 
Snow,  46  Iowa  481  (1877).  And  so  "where  a  creditor  of  one  partner  know- 
ingly receives  goods  of  the  firm  in  payment,  he  is  liable  for  their  full  value 
to  the  partnership,  Dob  v.  Halsey,  16  Johns.  34  (1819). 

•Cotton  v.  Evans,  1  Dev.  &  B.  Eq.  284  (1835);  Wagner  v.  Freschl,  56  N. 
H.  495  (1876) ;  Deitz  v  Regnier,  27  Kans.  94  (1882) ;  Windham  Co.  Bank  v. 
Kendall,  7  R.  I.  77  (1861). 

TSherwood  v.  Snow,  46  Iowa  481  (1877). 


CONSENT    OF    PARTNERS.  575 

§  415.  Consent  of  Partners — Presumption. — If  a  firm  note 
is  given  for  the  individual  debt  of  a  partner  with  the  consent 
of  the  firm,  it  will,  of  course,  be  binding  on  all  the  partners 
consenting.1  And  it  seems  that  a  subsequent  promise  of  the 
other  partner  to  pay  the  note,  made  to  one  who  had  taken  it 
with  full  knowledge  of  the  facts,  would  be  sufficient  to  bind 
the  firm  without  any  new  consideration.2  The  consent  of 
the  firm  to  the  giving  or  indorsing  of  such  paper  may  be 
implied.3  And  such  consent  may  be  implied  from  the  pay- 
ment of  money  by  one  partner  into  the  hands  of  the  partner 
drawing  such  bill  as  firm  assets  and  for  the  purpose  of  meet- 
ing the  bill.4 

But  where  a  bill  of  exchange  is  given  in  the  name  of  a 
firm  for  the  individual  debt  of  the  partner  giving  it,  it  will 
be  presumed  to  have  been  given  without  the  consent  of  the 
other  partners,  and  if  without  their  consent,  then  in  fraud 
of  them.5  Where  the  character  of  the  paper  as  accommoda- 
tion paper  of  this  sort  appears  and  is  known  to  the  pur- 
chaser, or  where  he  has  reason  to  know  it  from  the  nature 
of  the  transaction,  the  burden  of  proof  will  be  upon  him  to 
show  authority  on  the  part  of  the  firm  or  its  subsequent 
assent.6     And  the  assent  of  the  others  in  such  case  must  be 

•Laverty  v.  Burr,  1  Wend.  529  (1S28) ;  Lanier  v.  McCabe,  2  Fla.  32  (1848)  ; 
Noble  v.  M'Clintock,  2  Watts  &  S.  152  (1841). 

'Commercial  Bank  v.  Warren,  17  N.  Y.  577  (1857). 

3Gansevuort  v.  Williams,  14  Wend.  133  (1835). 

1  Davis  v.  Smith,  27  Minn.  390  (1880). 

5Byles  47  ;  1  Parsons  126  ;  1  Daniel  336  ;  Shirreff  v.  Wilks.  1  East  48 ;  Green 
v.  Deakin,  2  Stark.  347  ;  Arden  v.  Sharpe,  3  Esp.  o24 ;  Richmond  v  Heapy, 
1  Stark.  202;  Barber  v.  Backhouse,  Peake  61;  Wallace  v.  Kelsall,  7  M.  & 
W.  264 ;  Jones  v.  Yates,  9  B.  &  C.  532 ;  Gordon  v.  Ellis,  7  Man.  &  G.  607  ;  Jacaud 
v.  French,  12  East  317;  Laveson  v.  Lane,  13  C.  B.  (n.  s.)  278;  Foot  v.  Sabin, 
1!)  Johns.  154  (1821);  Kemcvs  v.  Richards,  11  Barb.  312  (1851);  Mecutchen 
v  Kennady,  3  Dutch.  230  (1858) ;  Davis  v.  Smith,  27  Minn.  390  (1880) ;  Lav- 
erty  v.  Burr,  1  Wend.  531  (1828):  Williams  v.  Walbridge,  3  lb.  415  (1829); 
Davenport  v.  Runlett,  3  N.  H.  386  (1826);  Rolston  v.  Click,  1  Stew.  526 
(Ala.  1828). 

6Bank  of  Commerce  v.  Seldcn,  3  Minn.  155  (1859);  Elliott  v.  Dudley.  19 
Barb.  326  (1855);  Bank  of  Venjennes  v.  Cameron,  7  Barb.  143  (1849);  Rog- 
ers v.  Batchelor,  12  Pet.  221  (1838);  Smyth  v.  Strader,  4  How.  404  (1846). 
But  the  fact  that  a  note  payable  to  the  firm  of  A.  &  B.  was  indorsed  by  the 
partner  A.  to  another  firm,  A.,  B.  &  Co.,  and  in  its  name  forthwith  to  the 
holder,  will  not  throw  on  the  holder  the  burden  of  showing  the  assent  of  B. 
although  the  holder  saw  the  indorsements  made,  the  former  firm  being  at 


576  CAPACITY — PARTNERS. 

shown  clearly.1  A  mere  subsequent  promise  on  their  part 
to  pay  the  bill  or  note,  without  knowing  the  circumstances 
under  which  it  was  issued,  will  not  amount  to  assent.2  Nor 
will  a  waiver  on  their  part  of  protest  for  non-payment,  or  a 
failure  to  disclaim  promptly  the  liability  of  the  firm,  amount 
to  such  assent  or  to  a  ratification  of  the  paper.3  Where  a 
note  is  made  by  a  member  of  a  firm  for  his  individual  pur- 
chases, and  indorsed  by  him  with  a  guaranty  in  the  name 
of  the  firm,  it  will  not  bind  the  firm  in  the  hands  of  a  holder 
who  was  ignorant  of  the  circumstances  by  reason  of  his  own 
negligence  in  the  matter.4  If  a  firm  has  given  its  assent  to 
the  execution  of  partnership  paper  in  payment  of  an  indi- 
vidual debt  of  one  partner,  this  consent  is  revocable  until 
actually  used  and  the  paper  delivered.6 

Where  a  partnership  bill  or  note  is  given  for  the  indi- 
vidual debt  of  one  partner,  the  burden  of  proof  is  upon  the 
defendant  to  show  this  fact.6  Whether  such  an  instrument 
was  given  for  firm  debt  or  not,  is  a  question  of  fact  for  the 
jury.7  So,  it  is  a  question  of  fact  whether  a  bill  of  exchange, 
drawn  upon  a  firm  and  accepted  in  its  name  by  one  partner, 
for  goods  sold  him  outside  of  the  line  of  business  of  the  firm, 
has  been  accepted  with  the  consent  of  the  firm.8  Where  a 
note  is  given  in  this  manner  by  one  partner  for  money  bor- 
rowed by  him,  the  firm  will  not  be  rendered  liable  by  the 

the  time' indebted  to  the  latter,  and  B.  saying  to  the  plaintiff  that  the  note 
was  a  good  collateral,  Walker  v.  Kee,  16  80.  Car.  76  (1881). 

1  Joyce  v.Williams,  14  Wend.  141  (1835).  So,  if  given  for  the  debt  of 
another  firm  having  a  partner  in  common  with  the  first,  Tyree  v.  Lyon,  67 
Ala.  1  (1880).  Mere  knowledge  and  failure  by  the  other  partner  to  express 
his  dissent  is  not  sufficient,  McKinnev  v.  Brights,  16  Penna.  St.  399  (1851) ; 
Elliott  v.  Dudley,  19  Barb.  326;  Reubm  v.  Cohen,  48  Cal.  545  (1874). 

2  Wilson  v.  Forde,  20  Ohio  St.  89  (1870). 

3 Marsh  v.  Thompson  National  Bank,  2  111.  App.  217  (1878). 

4 New  York,  &c,  Ins.  Co.  v.  Bennett,  5  Conn.  574. 

5 National  Bank  of  Jacksonville  v.  Mapes,  85  III.  67  (1877). 

6Whitaker  v.  Brown,  16  Wend.  505  (1836) ;  Deitz  v.  Regnier,  27  Kans.  94 
(1882);  Hamilton  v.  Summers,  12  B.  Mori.  11  (1851);  Barrett  v.  Swann,  17 
Me.  180  (1840);  Ensminger  v.  Marvin,  5  Blackf.  210  (1S39)  ;  Hickman  v. 
Kunkle,  27  Mo.  401  (1858) ;  Magill  v.  Merril,  5  B.  Mon.  168  (1844). 

TDuran  v.  Ayer,  67  Me.  145  (1877). 

"Chitty  61 ;  Wood  v.  Holbeck,  May  28th,  1826,  cor.  Abbott.  C.  J.,  at  Guild- 
hall. 


DEFENSE.  577 

tiere  fact  that  be  has  purchased  and  furnished  to  it  a  large 
mount  of  goods  which  have  been  credited  to  him  on  its  books.1 

§  416.  Defense — When  Inadmissible. — In  the  hands  of  a 
wna  fide  holder  for  value  before  maturity,  it  is  no  defense 
hat  the  bill  or  note  in  question  has  been  given  for  the  indi- 
/idual  debt  or  advantage  of  one  partner.2  In  all  such  cases 
he  ostensible  power  of  every  partner  raises  a  sufficient  im- 
plication to  bind  the  firm,  and  without  such  implication  it 
would  be  impossible  to  carry  on  the  ordinary  business  of  a 
mercantile  firm.  This  applies  properly  only  to  commercial 
paper  taken  in  the  regular  course  of  business.3  In  the  hands 
of  such  a  holder  it  is  immaterial  that  the  paper  was  given 
without  the  knowledge  of  the  other  partners,  and  that  the 
proceeds  of  it  were  actually  received  and  used  by  the  partner 
giving  it.4 

Beyond  the  protection  afforded  to  such  a  holder,  a  partner 
cannot  render  his  firm  liable  for  a  note  given  by  him  in  its 
name  for  his  individual  debt  by  including  in  the  amount  of 
the  note  a  debt  of  the  firm.5  In  such  case  the  firm  would  be 
liable  pro  tanto  only.6  This  is  so  also  where  a  note  is  given 
for  a  firm  debt,  part  of  which  accrued  before  a  new  partner 
was  taken  into  the  firm  and  part  afterwards.  In  such  case 
even  a  bona  fide  holder  can  recover  against  the  new  partner 
with  the  others  only  for  the  latter  part  of  the  debt.7 

'Clay  v.  Cottrell,  18  Penna.  St.  408  (1852). 

JByles  46;  Chitty  54;  Swan  v.  Steele,  7  East  210;  Ridley  v.  Taylor,  13  lb. 
175;  Jacaud  v.  French,  12  lb.  32:2;  Arden  v.  Sharpe,  2  Esp.  524;  Wells  ». 
Mastermann,  lb.  731;  Lane  v.  Williams,  2  Vern.  277;  Baker  v.  Charlton, 
Peake  80;  Bahcock  v.  Stone,  3  McLean  172  (1843);  Miller  v.  Manice,  6  Hill 
114  (1843);  Waldo  Bank  v  Lumbert,  16  Me.  416  (1839);  Duncan  v.  Clark,  2 
Rich.  587  (1846) ;  Knapp  v.  McBride,  7  Ala.  19  (1844) ;  Onondaga  Co.  Bank 
v.  DePnv,  17  Wend.  47  (1837)  :  Faler  v.  Jordan,  44  Miss.  283  (1870) ;  Parker 
v.  Burgess,  5  R.  I.  277  (1858) ;  Keilogg  v.  Fancher,  23  Wis.  21  (1868) ;  Blodgett 
v.  Weed,  119  Mass.  215  1 1875)  :  Murphy  v.  Camden,  18  Mo.  122  (1853).  But 
this  would  be  a  good  defense  in  favor  of  a  dormant  partner  not  known  to 
the  purchaser  at  the  time  of  taking  the  paper,  Miller  v.  Manice,  supra; 
Yorkshire  Banking  Co.  v.  Beaton.  L.  R.  4  C.  P.  D.  204  (1879). 

3Baseom  v.  Young,  7  Mo.  1  (1841);  Hawes  v.  Dunton,  1  Bailey  146  Q829). 

♦Emerson  v.  Harimon,  14  Me.  271  (1837). 

5  Kin»:  v.  Faber,  22  Penna.  Si.  21  |  1853). 

6Gamble  v.  Grimes,  2  Ind.  392  (1850). 

'Guild  v.  Belcher,  119  Mass.  257  (1878). 


578  CAPACITY PARTNERS. 

Although  a  bill  of  exchange  is  known  by  the  holder  to  have 
been  given  in  part  for  an  individual  debt  of  one  partner,  even 
a  secret  partner  will  be  liable  on  the  bill  so  far  as  regards  the 
rest  of  the  debt  secured  by  it,  notwithstanding  that  the  holder 
had  no  knowledge  of  the  existence  of  a  dormant  partner.1 
Where,  however,  a  firm  note  is  made  for  the  individual  debt 
of  a  partner  in  a  partnership  which  was  not  commercial  in 
its  character,  it  will  not  bind  the  firm  even  in  the  hand  of  a 
bona  fide  holder  for  value,  as  there  is  no  general  authority 
implied  in  such  a  case  to  give  such  paper.2  On  the  other 
hand,  a  note  given  for  the  individual  debt  of  one  partner  in 
a  commercial  firm  will  bind  the  firm  at  suit  of  a  holder  with- 
out notice  and  for  value,  notwithstanding  notice  of  such  fact 
to  the  original  payee.3 

§  417.  Burden  of  Proving  Notice. — In  all  cases  where  a 
firm  seeks  to  avail  itself  of  such  defense,  the  burden  is  on  it 
to  prove  notice  of  the  fact.4  In  like  manner,  a  newT  partner 
can  relieve  himself  from  liability  on  a  note  given  for  debts 
of  the  old  firm  only  by  proving  that  the  holder  knew,  or 
had  reason  to  know,  that  the  firm  name  was  being  improp- 
erly used  in  the  transaction.6  Where  a  partnership  bill 
payable  to  the  order  of  the  drawer  is  drawn  by  one  partner 
on  the  firm,  and  accepted  by  himself,  and  indorsed  and  nego- 
tiated in  the  firm  name,  this  has  been  held  to  be  sufficient 
notice  of  the  fact  that  it  was  given  for  the  individual  benefit 
of  such  partner.6  So,  where  a  note  is  made  by  one  partner 
individually,  and  indorsed  by  him  in  the  firm  name  over  the 
indorsement  of  the  payee,  this  is  sufficient  notice  of  the  ac- 

1  Wintle  v.  Crowther,  1  Cromp.  &  J.  316.  But  see,  as  to  the  value  of  this 
case,  1  Parsons  129.  To  the  same  effect,  however,  see  Ellston  v.  Deacon,  L. 
R.  2  C.  P.  20  (1866) ;  Wilson  v.  Forde,  20  Ohio  St.  89  (1S70). 

2Crosthwait  v.  Ross,  1  Humph.  23  (1839) ;  Cocke  v.  Branch  Bank,  3  Ala. 
175  (1841)  ;  Gray  v.  Ward,  18  111.  32  (1856). 

3  Parkers  Burgess,  5  R.  I.  277  (1858);  Wright  v.  Brosseau,  73  111.  381 
(1874) ;  Atlantic  State  Bank,  &c,  v.  Savery,  82  N.  Y.  291  (1880). 

4Miller  v.  Manice,  6  Hill  114  (1S43) ;  Whitaker  v.  Brown,  16  Wend.  505 
(1836). 

5Abpt  v.  Miller,  5  Jones  32  (1857). 

"Cooper  v.  McClurkan,  22  Penna.  St.  80  (1853). 


BURDEN    OF    PROVING    NOTICE.  579 

commodation  character  of  the  firm  indorsement.1  So  is  a 
memorandum  made  on  a  partnership  note  to  the  effect  that 
it  was  given  as  security  for  the  note  of  one  partner.2  But 
such  notice  is  not  presumed  from  the  fact  of  the  note  being 
made  in  the  name  of  one  partner  payable  to  his  firm,  and 
indorsed  by  another  partner  in  the  firm  name  with  the  date 
and  rate  of  interest  left  blank,  or  from  the  fact  that  these 
were  filled  in  by  the  partner  using  the  note  when  he  deliv- 
ered it  to  the  plaintiff.3 

§  418.  Between  the  original  parties  to  a  bill  or  note,  the 
fact  that  it  was  given  and  received  in  payment  of  the  indi- 
vidual debt  of  one  partner  is  sufficient  notice  of  his  want  of 
authority  to  bind  the  firm.4  So,  if  the  holder  of  the  note 
of  an  individual  partner  takes  a  firm  note  in  renewal  of  it, 
he  has  notice  of  such  partner's  want  of  authority  and  cannot 
recover  against  the  firm.5  In  opposition  to  the  foregoing 
view  it  has  been  held  that  the  mere  circumstance  of  taking 
a  partnership  bill  or  note  for  the  individual  debt  of  one 
partner  is  not  sufficient  notice  of  his  want  of  authority,  as  he 
may  have  a  credit  in  his  favor  against  the  firm,  and  the  bur- 
den of  proving  a  fraud  on  the  partnership  and  actual  notice 
to  the  holder  have  been  held  to  fall  upon  the  firm,  even  in 
such  a  case.6     It  is  said,  however,  that  the  taking  of  the  firm 

'National  Bank  of  Commonwealth  v.  Law,  127  Mass.  72  (1879),  Gray,  C.  J., 
Baying:  "The  defendant's  name  being  upon  the  back  of  the  note  above 
that  of  the  payee's,  it  was  apparent  upon  the  note  itself,  read  in  the  light 
of  the  statute,  which  every  one  was  bound  to  know,  that  the  liability  of  the 
partnership  was  but  conditional  and  secondary,  and  therefore  that  prima 
facie  at  least  their  signature  was  affixed  for  the  accommodation  and  benefit 
of"  the  maker. 

2 National  Security  Bank  v.  McDonald,  127  Mass.  82  (1879).  And  in  such 
case  the  other  partners  will  not  be  liable  without  evidence  of  their  con- 
sent, lb. 

3  Wait  v.  Thayer,  118  Mass.  473  (1875). 

*Heath  v.  Sansom,  2  B.  &  Ad  291 ;  Barber  v.  Backhorn,  Peake61 ;  Ex  parte 
Agace,  2  Cox  312;  Ex  parte  Goulding,2Glyn  &  J.  118;  Mecutchenv.  Kennadv. 
3  Dutch.  230(1858);  Gansevoort  v.  Williams,  14  Wend.  133(1835);  Hagar 
v.  Mounts,  3  Blackf.  57  (1832)  ;  Williams  v.  Gilchrist,  11  N.  H.  535  (1841); 
Wagnon  v.  Clay,  1  A.  K.  Marsh.  257  (1818);  Wells  v.  Siess,  24  La.  An.  178 
(1872);  Livingston  v.  Hastie,  2  Oaines  246  (1804).  As  to  this  presumption 
and  also  as  to  the  presumption,  if  any,  from  the  handwriting  of  one  part- 
ner, see  Hope  v.  Cnst,  1  East  53. 

5Union  Nat.  Bank  v.  Underbill,  21  Hun  178  (1880). 

* Ex  parte  Bonbonus,  8  Ves.  542;  Houlditch  v.  Nias,  8  Price  689;  Hender- 


580  CAPACITY PARTNERS. 

paper  for  such  a  consideration  is  at  least  presumptive  evi- 
dence of  fraud  or  of  gross  negligence  amounting  to  fraud.1 
But  if  the  circumstances  of  the  case  are  such  as  to  make  it 
reasonable  to  believe  that  the  consent  of  the  firm  was  given 
to  such  paper,  the  firm  must  prove  the  fraud  in  its  own 
defense.2 

It  has  been  held  even,  that  taking  such  an  instrument 
from  one  partner  without  consulting  the  others  implies  suf- 
ficient notice  of  his  want  of  authority,  where  the  whole  paper 
is  in  his  handwriting.3  So,  if  a  note  has  been  indorsed  in 
the  partnership  name  in  a  transaction  which  is  clearly  out- 
side of  the  firm  business,  the  firm  will  not  be  liable  upon  it.* 

Where  the  firm  has  p.roved  in  defense  to  such  paper  that 
it  was  given  for  the  individual  debt  of  one  or  more  partners, 
the  burden  of  proof  is  then  on  the  holder  to  show  himself  a 
bona  fide  holder  for  value  before  maturity.5  Where  a  note 
is  given  by  one  partner  in  the  firm  name  for  his  own  debt 
or  benefit  to  one  who  knows  the  circumstances,  but  transfers 
it  to  a  bona  fide  holder  before  maturity  in  order  to  cut  off 
such  defense,  such  indorser  thereby  becomes  liable  for  the 
fraud  perpetrated  by  him  upon  the  partner  not  consenting  to 
the  paper ;  and  such  liability  is  not  to  the  firm,  but  to  the 
partner  injured,  and  is  not  a  right  of  action  belonging  to  the 
firm  which  passes  by  a  general  assignment  of  the  firm  debts.9 

son  v.  Wild,  2  Campb.  561.  See,  too,  Ridley  v.  Taylor,  13  East  175,  where 
the  partnership  bill,  however,  appeared  to  have  been  drawn  eighteen  days 
before  and  for  a  larger  amount  than  the  particular  debt  in  question.  In 
this  case  Lord  Ellenborough,  C.  J.,  said:  "If  this  were  distinctly  the  case 
of  a  pledging  by  one  partner  of  a  partnership  security  for  his  own  separate 
debt  without  the  authority  of  the  other  partners;  or  if  there  existed  in  this 
case  evident  covin  between  one  partner  and  the  holder  of  the  partnership 
securities,  upon  which  the  action  is  brought,  in  order  to  charge  the  other 
partner  without  his  knowledge  or  consent,  either  expressed  or  implied,  for 
the  private  advantage  of  the  parties  to  such  covinous  agreement,  we  should 
have  no  hesitation  to  pronounce  a  bill  drawn  and  indorsed  under  such  cir- 
cumstances void  in  the  hands  of  the  covinous  holders  *  *  *  but  upon 
the  facts  stated,  such  does  not  distinctly  appear  to  us  to  be  the  case." 

1  Davenport  v.  Runlett,  3  N.  H.  386  (1826) ;  Eastman  v.  Cooper,  15  Pick 
276. 

»Frankland  v.  M'Gusty,  1  Knapp  P.  C.  C.  274  (1830). 

"Chitty  60;  Hope  v.  Oust,  cited  1  East  53. 

4 Newman  v.  Richardson,  9  Fed.  Rep.  865  (1881). 

BWright  v.  Brosseau,  73  111.  381  (1874). 

8Calkins  v.  Smith,  48  N.  Y.  614  (1872). 


ACCOMMODATION  PAPER  BY  PARTNERS.       581 

§  419.  Accommodation  Paper  by  Partners. — The  power  of 
partners  to  bind  one  another  by  commercial  paper  will  not 
extend  to  indorsements  or  other  contracts  for  the  accommo- 
dation of  a  third  person.  And  the  fact  that  the  paper  in 
question  has  been  given  for  accommodation  is  a  good  defense 
against  any  holder  who  has  taken  it  with  knowledge  of  that 
fact.1  So,  a  partner  has  no  power  to  give  a  bill  or  note  in 
the  firm  name  as  guarantor  for  a  purpose  in  no  way  con- 
nected with  the  partnership  business.2  So,  a  note  given  by 
one  in  the  firm  name  as  surety  and  not  in  the  course  of 
the  firm's  business,  is  not  binding  upon  it.3  It  has  been 
held  that  one  partner  using  the  firm  name  in  such  a  way 
without  consent  of  the  others,  is  liable  as  though  he  had 
signed  his  individual  name.4  But  where  an  acceptance  has 
been  given  by  the  acting  partner  in  a  firm  in  consideration 
of  similar  acceptances  for  the  firm  by  the  drawer  of  the  bill, 
such  acceptance  will  be  binding  upon  the  firm.5 

Where  the  word  "  surety  "  is  added  to  the  signature,  this 
is  presumptive  evidence  of  its  accommodation  character.6 
And  where  one  partner  has  indorsed  a  note  as  surety  for  the 
maker  in  the  partnership  name,  the  burden  of  proof  is  on 
the  holder  to  rebut  the  presumption  that  the  indorsement  is 
given  in  fraud  of  the  partnership.7     So,  where  the  individ- 

1  Wilson  v.  Williams,  14  Wend.  146  (1835);  Bank  of  Rochester  v.  Bowen, 
7  lb.  158  (1S31) ;  B»vd  v.  Plumb.  lb.  307  (1831) ;  Stall  v.  Catskill  Bank,  18  lb. 
466  (1837) ;  Sweetser  v.  French,  2  Cush.  309  (1848) ;  Bloom  v.  Helm,  53  Miss. 
21  (1876);  Foot  v.  Sabin.  19  Johns.  154  (1821);  Laverty  v.  Burr,  1  Wend. 
528  (1828);  Andrews  v.  Planters'  Bank,  7  8m.  &  M.  192  (1840);  Chenowitb 
v.  Chamberlain,  6  B.  Mon.  60  (1845)  ;  Rollins  v.  Stevens.  31  Me.  454  (1850) ; 
Lang  e.  Waring,  17  Ala.  145  (1850);  Heffron  v.  Hanaford,  40  Mich.  305 
(1879);  Whaley  v.  Moody,  2  Humph.  495  (1841);  Bank  of  Tennessee  v.  Saf- 
larrans,  3  Humph.  597  (1842);  Chazournes  v.  Edwards,  3  Pick.  5  (1825); 
Long  v.  Carter,  3  Ired.  288  (1842);  Vredenburg  v.  Lagan,  28  La.  An.  941 
(1876).  And  see  an  article  on  this  subject  in  15  Cent.  L.  J.  222.  And  this  is 
true  even  where  goods  have  been  sold  on  the  strength  of  the  accommoda- 
tion indorsement,  Wilson  v.  Williams,  .supra. 

2 Marsh  v.  Thompson  Xat.  Bank,  2  Bradw.  217  (1878) ;  Davis  v.  Blackwell, 
5  lb.  32  (1879) ;  Spurk  v.  Leonard,  9  lb.  174  (1881). 

■Long  v.  Carter,  3  Ired.  238  (1842) ;  New  York  Firemen  Ins.  Co.  v.  Ben- 
nett, 5  Conn.  574  (1825). 

'Silvers  v.  Foster,  9  Kans.  56  (1872). 

Hiaim  v.  Samuel.  14  Ohio  592  (1846). 

6 Boyd  v.  Plumb,  7  Wend.  309  (1831). 

'Darling  v.  March,  22  Me.  184  (1842).  / 


582  CAPACITY PARTNERS. 

ual  note  of  one  partner  is  guaranteed  by  the  firm,  this  is  of 
itself  notice  that  the  paper  has  not  been  signed  in  the  firm 
business,  and  the  purchaser  takes  it  at  his  peril.1  So,  if  a 
partner  gives  a  blank  acceptance  in  the  firm  name,  it  is  no- 
tice of  his  want  of  authority.2  But  where  a  blank  draft  is 
signed  by  a  firm,  the  drawer's  authority  is  implied,  as  we  have 
seen,  to  fill  it  up  and  negotiate  it,  and  the  fact  that  it  is  filled 
up  by  the  holder  at  the  time  of  the  transfer  and  in  the  trans- 
feree's presence,  is  no  evidence  of  its  being  accommodation 
paper.3 

§  420.  Consent  to  Accommodation  Binds  Firm. — Accommo- 
dation paper  given  by  one  partner  in  the  firm  name  with  the 
consent  of  the  others,  either  express  or  implied,  binds  the 
firm.4  Thus,  notes  of  the  firm  given  by  one  partner,  in  set- 
tlement of  a  previous  liability  of  the  firm  as  surety  for  an- 
other, which  it  had  recognized  by  an  agreement  to  give  the 
notes  in  settlement,  will  be  binding  upon  the  firm.5  It  is 
not  necessary  that  such  paper  should  be  executed  under  a 
special  authority,  but  any  assent  or  promise  to  pay  given 
afterward  by  the  other  partners  is  sufficient  to  bind  them.6 
A  subsequent  conversation,  in  which  the  other  partners  did 
not  deny  their  liability  upon  such  paper,  but  said  that  it 
would  have  to  take  its  course  and  be  disposed  of  like  other 
indebtedness  of  the  firm,  is  material  to  show  their  liability 
and  waiver  of  notice  of  protest 7  And  it  has  been  held  that 
the  consent  of  a  firm  to  such  accommodation  paper  will  in- 
clude a  renewal  of  it  after  dissolution  of  the  firm.8  A  part- 
ner who  discovers  that  his  copartner  is  in  the  habit  of  im- 

1  Marsh  v.  Thompson  Nat.  Bank,  2  Bradw.  217  (1878). 

2 Hogarth  v.  Latham,  39  L.  T.  R.  75  (1878). 

8Chemung  Canal  Bank  v.  Bradner,  44  N.  Y.  680  (1871). 

*  First  National  Bank  of  Fort  Dodge  v.  Breese,  39  Iowa  640  (1874) ;  Lav- 
erty  v.  Burr,  1  Wend.  531  (1828).  See,  too,  Sweetser  v.  French,  2  Cush.  309 
(1848).  But  such  consent  must  clearly  appear,  Wilson  v.  Williams,  14 
Wend.  146  (1835). 

5 Bloom  v.  Stern,  23  La.  An.  747  (1871) ;  Star  Wagon  Co.  v.  Swezey,  52  Iowa 
(1879) ;  S.  C,  59  lb.  609  (1882). 

8  Butler  v.  Stocking,  8  N.  Y.  408  (1853). 

7  First  Nat.  Bank  of  Dubuque  v.  Carpenter,  34  Iowa  433  (1872). 

8  Dundass  v.  Gallagher,  4  Penna.  St.  205  (1846). 


BURDEN  OF  PROVING  CONSENT.  583 

properly  drawing,  accepting  or  indorsing  in  the  firm  name 
for  the  accommodation  of  others  should  file  a  bill  in  equity 
to  prevent  further  acts  of  the  sort  by  injunction.1 

§  421.  Burden  of  Proving  Consent. — Where  it  appears 
that  the  firm  paper  has  been  given  by  one  partner  as  accom- 
modation paper,  the  burden  of  proof  rests  on  the  holder  to 
show  original  authority  or  subsequent  ratification  by  the 
firm.2  The  consent  of  the  firm  to  the  giving  of  such  accom- 
modation must  be  clearly  proven.3  And  the  mere  fact  that 
the  other  partner  had  in  one  instance  seen  a  notice  of  the 
maturing  of  a  bill  indorsed  by  the  firm  name  as  sureties,  and 
had  not  denied  the  authority  of  the  other  partner  to  use  the 
firm  name  in  that  manner,  coupled  with  the  fact  that  such 
notices  were  often  left  at  the  store  of  the  firm,  will  not  be 
sufficient  to  hold  the  firm  on  a  note  signed  by  it  as  sureties 
without  other  proof  or  knowledge  of  that  fact.4  Nor  is  it 
sufficient  that  the  holder  has  made  inquiries  before  taking 
the  paper  at  the  bank  where  the  firm  did  its  business.5  And 
even  proof  of  a  habit  of  giving  accommodation  indorsements 
will  not  be  evidence  of  the  firm's  assent  to  an  accommodation 
note  given  by  one  partner.6 

§  422.  Accommodation — When  Binding — Bona  Fide  Hold- 

1  Master  v.  Kir  ton,  8  Ves.  74;  Ryan  v.  Mackmath.  3  Bro.  C.  C.  15;  New- 
some  v.  Coles,  2  Campb.  619;  Lawson  v.  Morgan,  1  Price  303. 

2Sweetser  v.  French,  2  Cush.  309  (1848)  ;  Tompkins  v.  Woodyard,  5  \V.  Va. 
216  (1872).  So,  if  such  note  was  given  as  guarantor  or  surety  for  another 
and  the  fact  was  known  to  the  purchaser,  the  burden  is  on  him  to  prove 
authority  from  the  other  partners,  Spurck  v.  Leonard,  9  Bradw.  174  (1881). 
And  Buch  authority  may  be  presumed  from  the  course  of  business  of  the 
firm,  Sweeteer  v.  French,  supra. 

3  Butler  v.  Stocking,  8  N.  Y.  408  (1853):  Foot  v.  Sabin,  19  Johns.  154 
(1821 1.  And  it  is  not  conclusive  evidence  of  such  authority  that  blanks  for 
date  and  rate  of  interest  were  left  in  the  note  and  filled  in  when  it  was  in- 
dorsed and  negotiated  bv  such  partner,  Wait  v.  Thayer,  118  Mass.  473  (1875) ; 
Hendrie  v.  Berkowitz,  37  Cal.  113  (1869). 

♦Andrews  v.  Planters'  Bank,  7  Sin.  &  M.  192  (1846).  The  fact  that  the 
note  was  made  by  and  payable  to  the  individual  partner,  and  indorsed  by 
him  in  his  own  name  and  in  that  of  his  firm,  is  not  sufficient  notice  to  de- 
stiny the  bona  fide  character  of  the  purchaser,  Redlow  v.  Churchill,  73  Me. 
146  (1882).  And  the  fact  that  the  note  was  purchased  from  a  broker  will 
not  raise  the  presumption  that  he  was  the  agent  of  the  maker,  lb. 

5Pooley  v.  Whitmore,  10  Heisk.  629  (1873). 

6  Early  v.  Reed,  6  Hill  12  (1843). 


584  CAPACITY PARTNERS. 

ers. — Where,  however,  accommodation  paper  is  given  oy  one 
partner  and  the  benefit  is  received  by  the  firm,  it  b. s  been 
held  to  be  binding  on  the  firm.1  And  if  a  bill  is  drawn  by 
one  partner  on  his  firm  and  accepted  by  them  apparently  in 
the  regular  course  of  business  and  discounted  for  value,  it 
will  be  binding  upon  the  firm.2 

And,  in  general,  it  is  no  defense  against  a  bona  fide  holder 
for  value  before  maturity  that  the  paper  was  given  for  accom- 
modation by  one  partner  without  the  consent  of  the  others.3 
But  if  the  transfer  of  such  paper  is  under  circumstances  cal- 
culated to  arouse  suspicion,  the  holder  will  not  be  regarded 
as  a  bona  fide  purchaser  and  will  be  subject  to  the  defense 
that  the  paper  was  given  for  accommodation  without  the  con- 
sent of  the  firm.4  And  where  a  partnership  note  was  drawn 
by  one  partner  for  his  own  accommodation  and  transferred 
to  an  unincorporated  bank,  and  the  partner  who  made  the 
note  was  also  a  partner  in  the  bank  and  had  received  money 
for  the  express  purpose  of  taking  up  the  note  and  had  mis- 
applied it,  the  bank  was  held  to  be  bound  by  his  knowledge 
of  the  facts.5 

Where  partnership  paper  is  proved  to  have  been  given  for 
accommodation,  the  burden  of  showing  his  good  faith  is  then 
shifted  to  the  holder.6  And  where  a  bill  has  been  discounted 
for  the  drawer,  payable  to  his  firm  and  indorsed  in  its  name, 
it  will  be  presumed  to  have  been  given  for  accommodation.7 
And  this  is  true  especially  where  the  transaction  was  not 
within  the  scope  of  the  partnership  business  or  apparently 
authorized  by  any  previous  habit  of  indorsing  such  paper.8 

xLangan  v.  Hewett,  3  Sm.  &  M.  122  (1849). 

'Beach  v.  State  Bank,  2  Ind.  488  (1851). 

sCatskill  Bank  v.  Stall,  15  Wend.  364  (1836) ;  affirmed  as  Stall  v.  Catskill 
Bank,  18  lb.  466  (1837) ;  Wells  v.  Evans,  20  lb.  251  (1838);  Austin  v.  Van- 
dermark,  4  Hill  259  (1843) ;  Chemung  Canal  Bank  v.  Bradner,  44  N.  Y.  680 
(1871) ;  Beach  v.  State  Bank,  2  Ind.  488  (1851) ;  Waldo  Bank  v.  Lumbert,  16 
Me.  416  (1839). 

♦Roth  v.  Colvin,  32  Vt.  125  (1859). 

5Stockdale  v.  Keyes,  79  Penna.  St.  251  (1875). 

•Bank  of  St.  Albans  v.  Gilliland,  23  Wend.  311  (1840). 

7  Bank  of  Vergennes  v.  Cameron,  7  Barb.  143  (1849). 

"Tanner  v.  Hall,  1  Penna.  St.  417  (1845). 


VIOLATION    OF    PARTNERSHIP    AGREEMENT.  585 

But  the  fact  that  a  note  payable  to  one  firm  was  indorsed  to 
another  firm  by  a  partner  common  to  both,  and  indorsed  by 
such  partner  for  the  latter  firm  also,  and  discounted  by  him, 
will  not  amount  to  notice  of  its  accommodation  character.1 

§  423.  Violation  of  Partnership  Agreement. — The  articles 
of  partnership  frequently  limit  the  power  of  individual  part- 
ners to  bind  the  firm  by  bills,  notes  or  indorsements,  and  in 
such  case  their  power  is  to  be  determined  by  such  articles, 
except  where  purchasers  without  notice  before  maturity  may 
be  concerned.2  Against  a  bona  fide  purchaser  for  value  before 
maturity  it  is  no  defense  to  show  that  such  paper  was  executed 
in  violation  of  the  articles  of  partnership.3  But  such  restric- 
tions are  a  good  defense  at  suit  of  a  holder  with  notice ;  and 
so  is  any  notice  that  the  firm  will  not  be  responsible  for  the 
paper.4  Where  a  partnership  acceptance  given  in  violation 
of  such  agreement  is  in  the  hands  of  a  holder  who  has  notice 
of  the  agreement,  its  further  negotiation  will  be  restrained 
by  injunction.6 

If  the  violation  of  the  articles  of  partnership  is  once 
proved,  it  then  devolves  on  the  holder  to  prove  that  he  is  a 
holder  in  good  faith  and  for  value.6  But  where  an  accept- 
ance has  been  given  in  fraud  of  the  partnership,  and  issue  is 
taken  by  the  firm  on  the  acceptance,  the  burden  of  proof  is 
on  the  firm  to  show  that  the  holder  had  notice  of  the  fact ; 

'Atlas  National  Bank  v.  Savery,  127  Mass.  75  (1879). 

2Kimhro  v.  Bullitt,  22  How.  256  (1S59). 

■Byles  48;  Chitty  52,  55;  1  Daniel  340;  1  Edwards  §  97;  1  Parsons  133; 
Hogg  v.  Skene,  34  L.  J.  C.  P.  153;  Sandilands  v.  Marsh,  3  B.  &  Aid.  678; 
Barrett  v.  Russell,  45  Vt.  43  (1872);  National  Union  Bank  v.  Landon,  66 
Barb.  189  (1870),  affirmed  by  Ct.  Appeals,  40  How.  Pr.  721 ;  Winship  v.  Bank 
of  the  U.  8.,  5  Pet.  529  (1831);  Michigan  Bank  v.  Eldred,  9  Wall.  544  (1869)  ; 
First  Nat.  Bank  v.  Morgan,  6  Hun "346  (1876);  Pursley  v.  Ramsey,  31  Ga. 
403  (1860);  Gregg  v.  Fisher,  3  Bradw.  261  (1878);  Cottans  v.  Smith,  27  La. 
An.  128  (1875). 

4Byles  49;  Chitty  62;  Galway  v.  Matthew,  10  East  264;  S.  C,  1  Campb. 
403;  Minnit  v.  Whitney,  16  Vin,  A.br.  Partners,  A.,  244;  Willis  v.  Dyson,  1 
Stark.  164;  Vere  v.  Fleming,  1  Younge  &  J.  227  ;  Monroe  v.  Conner.  15  Me. 
179  (1838);  Dickson  v.  Penrose,  2  Miles  366  (1839).  So,  too,  although  the 
partnership  was  for  a  specified  period,  Booth  v.  Quin,  7  Price  193. 

5Hood  v.  Aston,  1  Russ  412. 

6Bvles  49;  Chitty  55;  1  Daniel  341  ;  1  Edwards  g  97;  Grant  v.  Hawkes, 
K.  B  Guildhall  1817:  Hogg  v.  Skene,  34  L.  J.  C.  P.  153;  Puller  v.  Roe, 
Peake  197. 


586  CAPACITY PARTNERS. 

and  until  that  is  shown  he  is  not  required  to  prove  himself  a 
holder  for  value.1  That  a  firm  acceptance  has  been  given 
without  authority,  and  that  the  holder  had  notice  of  the  want 
of  authority,  may  be  shown  in  evidence  under  the  general 
issue.2 

§  424.  Fraud — As  a  Defense. — We  have  hitherto  spoken 
only  of  such  particular  fraud  as  is  involved  in  the  giving  of 
partnership  paper  for  an  individual  debt  or  for  the  accom- 
modation of  a  third  party  or  in  violation  of  a  partnership 
agreement.  But,  in  general,  all  fraud  between  a  partner 
and  the  holder  of  such  paper  will  avoid  it  both  against  the 
firm  and  against  other  parties.3  And  where  both  parties  to 
a  transfer  are  partakers  in  the  fraud,  the  transferee  will  hold 
such  paper  as  a  mere  trustee  for  the  firm  and' its  creditors.4 

But  fraud  against  the  firm  will  not  render  the  paper 
invalid  in  the  hands  of  a  bona  fide  holder  for  value.5  So, 
where  one  partner  receives  and  misappropriates  money  in 
the  regular  business  of  the  firm,  and  gives  a  receipt  for  it  in 
the  firm  name,  the  firm  will  be  liable  for  such  misappropria- 
tion to  the  person  defrauded.6  So,  if  a  note  is  given  to  one 
partner  in  payment  for  partnership  property  sold,  and  is  dis- 
posed of  by  him  in  fraud  of  his  partners,  this  defense  will 
not  be  available  at  suit  of  a  bona  fide  holder  for  value.7 
And  subsequent  misapplication  of  money  obtained  by  dis- 

^yles  49;  Musgrave  v.  Drake,  5  Q.  B.  185.  But  see  dissent  of  Wills,  J.,  in 
Hogg  v.  Skene,  34  L.  J.  C.  P.  153. 

2Byles  49;  Jones  v.  Corbett,  2  Q.  B.  828;  Grout  v.  Enthoven,  1  Exch.  3S2. 

3Byles48;  Ex  parte  Bonbonus,  8  Ves.  540;  Wells  v.  Masterman,  2  Esp. 
731;  Green  v.  Deakin,  3  Stark.  347.  See,  too,  Cotton  v.  Van  Bokkelin,  1 
Dev.  &  B.  Eq.  284  (1835). 

4Stegall  v.  Coney,  49;Miss.  761  (1874). 

5Byles  48;  Chitty  60;  1  Parsons  125;  Ridley  v.  Taylor,  13  East  175;  Sutton 
v.  Gregory,  Peake  Add.  Cas.  150;  Duncan  v.  Clark,  2  Rich.  587  (1846) ;  Hop- 
kins v.  Boyd,  11  Md.  107  (1857) ;  Parker  v.  Burgess,  5  R.  I.  277  (1858) ;  Wind- 
bam  Co.  Bank  v.  Kendall,  7  lb  77  (1861) ;  Cotton  v.  Van  Bokkelin,  supra; 
Boardman  v.  Gore,  15  Mass.  339  (1819);  Manufacturers,  &c,  Bank  v.  Gore, 
15  Mass.  75  (1818);  First  Nat.  Bank  v.  Morgan,  73  N.  Y.  593  (1878).  So, 
where  notes  belonging  to  the  firm  are  fraudulently  transferred  by  one  part- 
ner and  come  to  the  hands  of  a  bona  fide  holder  for  value,  Hibernian  Bank 
v.  Everman,  52  Miss.  500  (1S76). 

"Atkinson  v.  Mackreth,  L.  R.  2  Eq.  570  (1866).  See,  too,  St.  Aubyn  v. 
Smart,  lb.  183  (1867) ;  S.  C,  L.  R.  3  Ch.  646  (1868). 

'Nichols  v.  Sober,  38  Mich.  67S  (1878). 


PLEADING    FEAUD.  587 

counting  the  firm  paper  in  the  regular  course  of  its  business 
will  not  relieve  the  firm  from  its  liability  to  holders  of  such 
paper.1  So,  too,  a  surviving  partner  will  be  liable  on  a 
partnership  bill  executed  in  blank  by  his  deceased  partner 
and  fraudulently  negotiated  after  his  death  to  a  bona  fide 
holder  by  a  clerk  of  the  firm,  who  filled  the  blank  with  a 
date  prior  to  the  death  of  the  partner.2  And  in  case  of  fraud 
by  a  deceased  partner,  although  his  executor  could  not  be 
sued  at  law,  he  may  be  held  liable  in  equity  to  a  bona  fide 
holder  for  the  amount  of  the  note  or  bill  fraudulently  given.3 
But  the  agent  for  selling  a  patent,  who  is  authorized  by  the 
owner  to  take  notes  payable  to  both  in  their  joint  names, 
cannot  as  a  partner  bind  his  principal,  the  owner  of  the 
patent,  by  a  fraudulent  accommodation  indorsement,  even  in 
the  hands  of  a  bona  fide  holder  for  value  before  maturity.4 

§  425.  Pleading  Fraud — Burden  of  Proof. — Fraud  upon 
the  partnership  in  giving  a  bill  or  acceptance  may  be  proved 
under  the  general  issue.5  But  under  such  plea  the  defend- 
ant must  prove  notice  as  well  as  fraud.6  And  where  fraud 
is  alleged,  an  injunction  will  be  granted  to  restrain  the  nego- 
tiation of  the  bill  by  a  holder  for  value,  who  had  notice  that 
the  acceptance  had  been  improperly  given  in  the  firm  name.7 

Until,  however,  fraud  is  shown,  the  authority  of  the  part- 
ner to  make  the  paper  in  dispute  is  presumed.8  If  it  is 
shown  to  have  been  made  in  a  business  outside  of  that  of  the 
firm,  fraud  will  be  presumed  against  a  holder  with  notice.9 
But  the  purchaser  has  no  grounds  for  suspicion  in  the  fact 
that  the  note  in  question  was  made  in  one  firm  name  and  in- 
dorsed in  another,  by  one  who  is  the  common  partner  of 

•Winship  v.  Bank  of  United  States,  5  Pet.  529  (1831). 
2 Usher  v.  Dauncey,  4  Campb.  97. 

"Lane  v.  Williams,  2  Vern.  277 ;  Devaynes  v.  Noble,  1  Meriv.  568  ;  Ander 
son  v.  Maltby,  Bro.  C.  C.  423 ;  2  Ves.  Jr.  244. 

♦Hotchkiss  v.  English,  4  Hun  369  (1875) ;  S.  C,  6  T.  &  C.  658. 

5 Jones  v.  Corbett,  2  Q.  B.  828;  Grout  v.  Enthoven,  1  Exch.  382. 

•Musgrave  v.  Drake,  5  Q.  B.  185  (1843). 

7 Hood  v.  Aston,  1  Russ.  412. 

"Carrier  v.  Cameron,  31  Mich.  373  (1875). 

'Eastman  v.  Cooper,  15  Pick.  276. 


588  CAPACITY PARTNERS. 

both  firms,  and  such  purchaser  will  not  be  required  to  prove 
the  assent  of  either  firm.1  And  this  is  trne,  although  both 
signatures  are  in  the  same  handwriting  and  the  note  is  pay- 
able to  the  partner  who  obtained  the  discount  and  wrote  the 
signatures.2  Suspicious  circumstances  are,  in  such  case,  only 
material  as  evidence  of  bad  faith  on  the  holder's  part.3  And 
the  rule  is  the  same  as  to  gross  negligence.4 

But  where  a  bill  of  exchange  has  been  accepted  by  one 
partner  in  fraud  of  his  firm,  with  a  blank  for  the  drawer's 
name,  and  the  bill  is  delivered  in  this  shape  for  value  by  a 
holder  with  notice  to  his  partner  in  another  firm  without 
notice,  and  filled  in  by  the  latter  with  his  own  firm  name  as 
drawers,  such  last  holder  cannot  recover  against  the  firm 
purporting  to  have  accepted  the  bill.5  On  the  other  hand, 
a  bill  of  exchange  executed  in  blank  by  one  partner  in  the 
firm  name  and  for  partnership  purposes,  and  left  negligently 
within  the  control  of  a  clerk,  who  dates  it  back  and  negotiates 
it  in  fraud  of  the  firm  after  the  death  of  the  partner  drawing 
it,  will  bind  the  surviving  partners.6 

Where  fraud  is  shown  on  the  part  of  the  firm  seeking 
exoneration,  the  burden  is  upon  the  holder  to  prove  his  own 
good  faith.7  In  such  case  he  must  also  prove  himself  to  be 
a  holder  for  value,  and  this  is  especially  true  if  he  has  taken 
the  paper  under  suspicious  circumstances.8 

§  426.  Dissolution   of   Firm — Surviving  Partners. — After 

xIhmsen  v.  Negley,  25  Penna.  St.  297  (1855).  And  the  firms  defrauded  by 
such  act  will  have  no  right  to  demand  contribution  from  one  another  by 
reason  of  the  fraud  of  their  common  partner,  Grubb  v.  Cottrell,  62  lb.  23 

(1869). 

'Miller  v.  Consolidation  Bank,  48  Penna.  St.  514  (1865). 

3Chitty  60;  Goodman  v.  Harvey,  4  Ad.  &  El.  870;  S.  G.,  6  Nev.  &  M.  272. 
In  the  earlier  view  of  this  question,  see  Down  v.  Hallington,  4  B.  &  C.  330. 

4Chitty  60;  Crook  v.  Jadis,  5  B  &  Ad.  909;  S.  C,  3  Nev.  &  M.  257;  Back- 
house v.  Harrison,  5  B.  &  Ad.  1098;  S.  C,  3  Nev.  &  M.  188. 

5  Hogarth  v.  Latham,  L.  R.  3  Q.  B.  D.  643  (1878). 

'Usher  v.  Dauncey,  4  Campb.  97. 

'Byles48;  1  Parsons  128;  Hogg  v.  Skene,  31  L.  J.  C.  P.  153;  Bank  of 
Venrennes  v.  Cameron,  7  Barb.  143  (1849) ;  Carrier  v.  Cameron,  31  Mich.  373 
(1875)  ;  Munroe  v.  Cooper,  5  Pick.  412  (1827). 

8  Heath  v.  Sansom,  2  B.  &  Ad.  291.  In  this  case  the  maker  "of  the  note 
gave  it  for  an  individual  debt  to  another  firm  of  which  he  was  also  a  mem- 
ber. 


AFTER    DISSOLUTION.  539 

the  dissolution  of  a  partnership  the  partners  have  no  longer 
power  to  bind  one  another  by  their  contract.  On  the  other 
hand,  dissolution  of  the  firm  will  not  affect  a  partnership 
liability  already  incurred.1  So,  if  the  dissolution  of  a  firm 
be  unknown  to  the  holder  of  its  paper,  his  subsequently 
taking  a  renewal  of  the  paper  from  one  partner  in  the  firm 
name  will  not  discharge  the  original  partners.2  Nor  will  the 
holder  of  a  partnership  note  be  affected  by  the  subsequent 
dissolution  of  the  firm  with  an  agreement  between  the  part- 
ners that  its  debts  should  be  paid  by  one  of  them.3 

In  general,  an  action  for  a  partnership  debt  lies  against 
the  surviving  partners  only,  upon  dissolution  of  the  firm  by 
the  death  of  any  partner.  Yet  if  the  surviving  partner  is  a 
certificated  bankrupt,  it  has  been  held  that  an  action  may  be 
maintained  against  the  executor  of  the  deceased  partner.4 
And,  on  the  other  hand,  a  surviving  partner  is  entitled  to  the 
partnership  assets  and  may  recover  possession  of  a  note  in 
trover  from  the  representatives  of  a  deceased  partner,  not- 
withstanding an  agreement  between  the  maker  of  the  note 
and  the  deceased  partner  for  a  set-off  of  such  partner's  indi- 
vidual debt  against  the  note,  the  agreement  not  having  been 
carried  out  in  the  deceased  partner's  life-time.5  If  several 
partners  give  their  joint  and  several  note,  although  at  law 
the  administrator  of  a  deceased  partner  will  be  liable  upon 
it,  yet  his  separate  estate  will  be  protected  in  equity  by 
application  in  the  first  instance  of  the  partnership  assets  to 
the  payment  of  such  note.6 

§  427.  After  Dissolution — No  Power  to  Draw  Bills. — After 
the  dissolution  of  a  firm  has  been  made  publicly  known,  the 
partners  have  no  longer  power  to  bind  one  another  by  bill  or 

^ulick  v.  Gulink,  1  Harr.  1S6  (N.  J.  1837). 

2Miller  v.  Miller,  8  W.  Va.  542  (1875). 

'Mogelin  v.  Westhoff,  33  Tex.  788  (1870). 

4Langt).  Keppele,  1  Binn.  123  (1804);  Caldwell  v.  Stileman,  1  Kawle  212 
(1829). 

6Stearna  v.  Houghton,  38  Vt.  583  (1865).  And  such  surviving  partner  will 
not  he  restrained  from  using  the  name  of  the  deceased  partner  in  the  old 
business,  Webster  v.  Webster,  3  Swanst.  490. 

6Filley  v.  Phelps,  18  Conn.  301  (1847). 


590  CAPACITY PARTNERS. 

note.1  Such  a  note  would,  however,  bind  the  individual  part- 
ner executing  it.2  Where  a  firm  has  been  dissolved  and  its 
debts  have  been  assumed  by  another  firm  having  in  it  one 
of  the  partners  of  the  original  firm,  he  has  no  power  to  give 
a  note  in  the  name  of  the  original  firm  for  its  debt.3  So,  if 
goods  have  been  ordered  by  a  firm  and  have  been  delivered 
after  its  dissolution  to  one  of  the  former  partners  doing  busi- 
ness in  his  own  name,  and  a  bill  of  exchange  has  been  drawn 
on  the  firm  after  such  dissolution  and  accepted  by  the  part- 
ner receiving  and  using  the  goods,  such  acceptance  will  not 
bind  the  other  partners.4  And  it  makes  no  difference,  as  a 
general  rule,  that  the  partnership  note  given  after  its  dissolu- 
tion was  in  settlement  of  its  debts.  If  the  holder  kuew  of  the 
dissolution,  the  note  will  not  bind  the  partners  who  did  not 
assent  to  it.5  And  if  one  partner  on  the  dissolution  of  the 
firm  agrees  to  pay  its  debts,  and  afterwards  draws  a  bill  of 

^yles  51;  Chitty  65;  1  Daniel  345;  1  Edwards  g  113;  1  Parsons  144; 
Heath  v.  Sansom,  4  B  &  Ad.  172;  S.  C,  1  Nev.  &  M.  104;  Wood  worth  v. 
Downer,  13  Vt.  522  (1841) ;  Haddock  v.  Crocheron,  32  Tex.  276  (1869)  ;  Ken- 
dall v.  Riley,  45  lb.  20  (1876) ;  Mitchell  v.  Ostrom,  2  Hill  520  (1842) ;  Meyer 
v.  Atkins,  29  La.  An.  586  (1877);  Merrit  v.  Pollys,  16  B.  Mon.  355  (1855); 
Fowler  v.  Richardson,  3  Sneed  508  (1856) ;  Hurst  v.  Hill,  8  Md.  399  (1855); 
Ransom  v.  Loyless,  49  Ga.  471  (1873);  Morrison  v.  Perry,  11  Hun  33  (1877); 
Montague  v.  Reakert.  6  Bush  393  (1869) ;  Curry  v  White,  51  Cal.  530  (1876) ; 
Bryant  v.  Lord,  19  Minn.  396  (1872);  Lusk  v.  Smith,  8  Barb.  570  (1850); 
Bank  of  Montreal  v.  Page,  98  111.  109  (1881);  Tombeckbee  Bank  v.  Dumell, 
5  Mason  56  (1828).  But  where  an  acceptance  was  given  on  the  23d  day  of 
April,  1861,  by  one  member  of  a  firm  divided  and  dissolved  by  the  war,  the 
period  of  dissolution  was  fixed  by  the  president's  proclamation  on  the  16th 
day  of  August,  1861,  and  the  acceptance  was  held  to  be  binding  on  the  firm, 
Matthews  v.  McStea,  1  Otto  7  (1875).  Where  a  note  is  given  after  dissolu- 
tion in  the  firm  name,  the  partnership  may  be  discharged  and  the  individual 
signer  held,  Ransom  v.  Loyless,  49  Ga.  471  (1873).  If,  on  the  other  hand, 
such  note  be  given  in  renewal  and  on  surrender  of  a  former  partnership 
note,  the  original  liability  of  the  firm  will  not  be  discharged,  Turnbow  v. 
Broack,  12  Bush  455  (1876).  As  to  this,  see,  also,  chapter  on  Payment  by 
Note,  infra.  But  the  relation  of  the  partner  assuming  to  pay  the  debts  of 
the  dissolved  firm  as  to  the  other  partners  has  been  held  to  be  that  of  prin- 
cipal to  surety,  and  an  extension  given  to  him  on  a  note  in  the  firm  name 
made  by  him  after  dissolution  has  been  held  to  discharge  the  others,  Smith 
v.  Sheldon,  35  Mich.  42  (1876). 

2Robb  v.  Mudge,  14  Gray  534  (1860). 

3 Brown  v.  Broad,  52  Miss.  536  (1876). 

*Ex  parte  Harris,  1  Madd.  583. 

5Martin  v.  Walton,  1  McCord  16  (1821);  Bank  of  South  Carolina  v. 
Humphreys,  1  McCord  388  (1821);  Perrin  v.  Keene,  19  Me,  355  (1841); 
Hamilton  v.  Seaman,  1  Ind.  185  (1848).  Nor  for  goods  ordered  by  the  firm 
before  its  dissolution,  Goodspeed  v.  South  Bend,  &c,  Plow  Co.,  45  Mich.  237 
(1881). 


IMPLIED    POWERS    AFTER    DISSOLUTION.  591 

exchange  in  the  firm  name  for  that  purpose,  it  will  not  bind 
the  other  partners.1 

§  428.  Implied  Powers  after  Dissolution — Admissions. — 
Power  to  bind  the  firm,  however,  by  a  bill  or  note  may  be 
given  by  implication  after  the  dissolution  of  the  firm.2  And, 
in  Pennsylvania  at  least,  a  partnership  still  exists  after  its 
dissolution,  for  the  purpose  of  closing  its  business,  and  one 
partner  may  bind  the  firm  by  a  note  given  for  that  purpose  ;3 
especially,  where  he  remains  in  possession  of  the  place  of 
business  of  the  firm  and  attends  to  the  collection  of  its  debts. 
And  in  such  case  he  may  bind  the  firm  by  a  note  given  in 
settlement  of  its  debt  without  any  express  authority  from  the 
others.*  But  one  partner  cannot  bind  the  others  after  disso- 
lution of  the  firm  by  a  note  in  the  firm  name  given  under  a 
previous  power  of  attorney,  where  the  dissolution  is  known 
to  the  payee.5  Nor  can  one  partner  after  dissolution  bind 
the  others  by  a  fresh  promise  to  pay  a  note,  on  which  their 
liability  as  indorsers  had  been  discharged  by  want  of  proper 
notice  of  protest.6 

But  it  has  been  held  that,  even  after  dissolution  of  the 
firm,  all  the  partners  will  be  bound  by  an  admission  made 
by  one  in  relation  to  a  previous  transaction  of  the  firm.7 
And  such  admission  may  be  used  in  evidence  against  all  in 
an  action  of  assumpsit  for  moneys  loaned  to  the  firm  and 
bills  accepted   by  the  plaintiff  on  its  behalf.8     So,  an  ac- 

JLe  Roy  v.  Johnson,  2  Pet.  186  (1829);  Brown  v.  Chancellor,  61  Tex.  437 
(1884).  So,  of  a  !>ill  drawn  to  borrow  money  to  pay  such  debts,  Hayden  v. 
Cretcher,  75  Ind.  108  (1S81).  But  see,  contra,  Siegfried  v.  Ludwig,  102  Penna. 
St.  547  (1883). 

'Graves  v.  Merry,  6  Cow.  701  (1827). 

3  Ward  v.  Tyler,  52  Penna.  St.  393  (1866).  See,  too,  remarks  of  Savage, 
C.  J.,  in  McPhereon  v.  Rathbone,  11  Wei.id.  96  (1831). 

♦Robinson  v.  Taylor,  4  Penna,  St.  212  (1846).  See,  too,  McCowin  v.  Cub- 
bison,  72  lb.  358  (1872) ;  Estate  of  Davis,  5  Whart.  530  (1840).  In  this  last 
case  the  money,  for  which  the  note  was  t^iven,  was  loaned  on  the  credit  of 
the  firm  by  one  who  knew  of  its  dissolution,  and  was  applied  for  its  benefit. 

5Schlater  v.  Winpenny,  75  Penna.  St.  321  (1874). 

•Sfhoneman  v.  Fegley,  7  Penna.  St.  433  (1848).  Or  by  the  Statute  of 
Limitations,  Casebolt  v.  Aekerman,  17  Vroom  169  (1884). 

7  Wood  v.  Braddock,  1  Taunt.  104;  Halliday  v.  Ward,  3  Campb.  32. 

8  Parker  v.  Merrill,  6  Me.  41  (1829) ;  Cady  v.  Shepherd,  11  Pick.  400  (1831). 


592 


CAPACITY PARTNERS. 


knowledgment,  made  by  one  partner  after  dissolution  of  the 
firm,  as  to  the  amount  of  a  balance  due  to  the  firm,  is  admis- 
sible to  charge  all  the  partners.1  But  where  a  partnership 
note  has  been  given  by  one  of  the  partners  after  its  dissolu- 
tion, his  admissions  as  to  the  transactions  of  the  firm  for 
which  the  note  was  given  have  been  held  not  t®  be  binding 
upon  the  others.2  And  the  admission  of  one  partner,  made 
after  dissolution  of  the  firm,  to  the  effect  that  a  draft  indorsed 
by  him  in  the  firm  name  has  been  duly  protested,  will  not 
amount  to  proof  of  notice  against  the  others.3 

§  429.  Ratification  after  Dissolution — Consent. — It  is  said 
that  one  partner  after  dissolution  may  bind  the  other  by  re- 
ceiving a  note  in  payment  of  a  debt  due  it  and  discharging 
the  debtor.4  And  if  a  partnership  note  is  given  after  disso- 
lution by  consent  of  all  the  partners  for  a  partnership  debt, 
it  will  be  binding  on  them  all.5  And  they  will  be  bound  in 
like  manner  by  their  subsequent  ratification  of  such  a  note 
given  without  their  authority.6  And  in  the  case  of  such  a 
note  given  without  authority,  a  partner's  subsequent  acknowl- 
edgment of  his  liability  and  promise  to  pay  the  note  will  be 
binding  on  him ;  especially  where,  on  the  dissolution  of  the 
firm,  he  had  assumed  such  debt  and  agreed  to  pay  it.7  And 
such  note  may  be  afterwards  ratified  by  the  other  partners 
by  their  making  a  payment  on  account  of  it  and  become  bind- 
ing on  them.8  So,  an  indorsement  by  one  partner  in  the  name 
of  his  firm  after  dissolution  will  be  ratified  by,  and  binding 
upon,  another  partner  who  knowingly  receives  his  share  of 
the  proceeds  of  discounting  such  note.9 

1  Ide  v.  Ingraham,  5  Gray  106  (1855).    But  see,  contra,  Kendall  v.  Riley,  45 
Tex.  20  (1876). 
2Maxey  v.  Strong,  53  Miss.  380  (1876). 

3  Bank  of  Vergennes  v.  Cameron,  7  Barb.  143  (1849). 

4  Riddle  v.  Etting,  32  Penna.  St.  412  (1859).     In  this  case  the  ex-partner's 
action  was  specially  authorized  by  the  articles  of  dissolution,  lb. 

5 Randolph  v.  Peck,  1  Hun  125  (1874).     And  see  McPherson  v.  Rathbone, 
11  Wend.  96  (1831). 

6  Draper  v.  Bissel,  3  McLean  275  (1843). 

7Peets  v.  Riley,  26  La.  An.  712  (1874). 

8  Eaton  v.  Taylor,  10  Mass.  54  (1813) ;  Chase  v.  Kendall,  6  Ind.  304  (1855). 

9 First  Niit.  Bank  of  Mankato  v.  Parsons,  19  Minn.  289  (1872). 


POWERS    OF    LIQUIDATING    PARTNER.  593 

§  430.  Powers  of  Liquidating  Partner. — Mere  authority  to 
settle  the  affairs  of  a  firm  will  not,  in  general,  include  the 
power  to  bind  it  by  commercial  paper  given  in  its  name.1 
jS'or  will  an  authority  "to  settle  all  demands  in  favor  of,  or 
against,  said  firm  "  confer  such  power.2  Nor  even,  it  has  been 
held,  authority  to  settle  the  business  of  the  firm  and  "to  sign 
the  name  of  the  firm  for  that  purpose." 'c  In  like  manner, 
the  partner  engaged  in  winding  up  the  concerns  of  a  firm 
derives  no  authority  from  that  fact  to  bind  it  by  renewals  of 
its  notes  in  the  firm  name.4  So,  a  partner  who  is  authorized 
after  dissolution  of  the  firm  to  receive  and  pay  its  debts,  has 
no  power  to  bind  it  by  an  indorsement,  although  given  for 
the  purpose  of  paying  a  firm  debt.5  On  the  other  hand,  the 
general  power  of  all  the  partners  to  receive  payment  of  debts 
due  to  the  firm  before  its  dissolution  will  authorize  one  of  the 
partners  to  take  an  acceptance  from  a  debtor  of  the  firm; 
and  the  fact  that  the  partners  have  agreed  among  themselves 
that  another  partner  should  collect  the  debts  will  constitute 
no  defense  to  such  acceptance.6  The  power  given  in  Penn- 
sylvania to  the  partner  charged  with  settling  up  the  business 
of  a  firm  after  its  dissolution  does  not  extend  to  the  others. 
Such  partner  is  therefore  the  only  one  who  can  bind  the  firm 
after  its  dissolution  by  a  firm  note  given  for  money  borrowed 
to  pay  its  debts.7 

The  power  of  a  partner  to  bind  his  firm  after  its  dissolution 
by  a  renewal  note  may  be  implied  from  his  authority  to  settle 
the  firm  business  and  to  use  its  name  in  such  settlement.8 

1  Myatts  v.  Bell,  41  Ala.  222  (1867) ;  Brown  v.  Chancellor,  61  Tex.  437  (1884) ; 
or  to  renew  a  matured  bill,  lb. ;  Martin  v.  Walton,  1  McCord  16  (1821). 

2Lock\vood  v.  Comstock,  4  McLean  383  (1848). 

'National  Bank  v.  Norton,  1  Hill  572  (1841). 

♦White  v.  Tudor,  24  Tex.  639  (1860). 

5Chitty  6'.);  Kilgour  v.  Finlyson,  1  H.  Bl.  155;  Abel  v.  Sutton,  3  Esp.  108; 
Smith  v.  Winter,  4  M.  &  W.  454;  Anderson  v.  Weston,  6  Bing.  N.  C.  296. 
But  see,  as  to  an  indorsement  given  in  carrying  out  a  specific  prior  agree- 
ment, Star  Wagon  Co.  v.  Swezey,  52  Iowa  3'Jl  (1879) ;  S.  C,  59  lb.  609  (1882). 

6  King  v.  Smith,  4  C.  &  P.  108. 

7McCowin  v.  Cubbison,  72  Penna.  St.  358  (1872);  Fulton  v.  Central  Bank, 
92  lb.  112  (1879). 

"Myers  v.  Huggins,  1  Strobh.  473  (1847). 

2n 


594  CAPACITY PARTNERS. 

And,  in  such  case,  the  other  partners  may  be  bound  by  an 
admission  on  their  part  that  they  had  left  the  assets  of  the 
firm  in  the  hands  of  such  acting  partner  for  the  purpose  of 
winding  up  its  affairs,  and  that  they  "had  no  objection  to 
his  using  the  partnership  name"  for  that  purpose;  and  the 
jury  may  infer  from  such  admission  a  power  to  indorse  and 
transfer  a  note  belonging  to  the  firm  left  in  the  hands  of 
such  partner.1  And  where  a  firm  on  its  dissolution  author- 
izes a  partner  to  use  the  firm  name  for  the  purpose  of  liqui- 
dating its  debts,  the  other  partners  will  be  bound  by  a  note 
indorsed  by  him  without  their  knowledge  in  the  firm  name 
and  discounted  and  used  for  that  purpose.2  It  has  been  held, 
however,  in  many  cases  that  the  power  given  to  a  partner  on 
dissolution  of  the  firm  to  use  its  name  in  settlement  of  its 
affairs  will  not  extend  to  an  indorsement  in  its  name  of  a 
new  note  in  renewal  of  a  former  indorsement  of  tlie  firm.3 

§  431.  Ante-dating  Dissolution  —  Blank  Instruments. — 
Where  the  firm  is  dissolved,  and  a  note  or  bill  is  afterwards 
given  in  its  name  without  authority,  and  dated  back  so  as  to 
ante-date  the  dissolution  of  the  firm,  it  will  not  be  binding 
upon  the  firm  even  in  the  hands  of  a  bona  fide  holder  for 
value.4  So,  if  a  bill  or  check  is  drawn  before  the  dissolution 
of  a  firm  and  not  delivered  until  afterwards,  it  will  not  be 
binding  upon  the  firm.5  Where  a  note  has  been  indorsed  in 
the  partnership  name  by  one  partner  in  blank,  and  trans- 
ferred by  him  after  the  dissolution  of  the  firm,  it  will  be  pre- 
sumed to  have  been  properly  indorsed  and  transferred  to 
such  partner  at  the  time  of  its  date.6  So,  where  one  partner 
drew  and  indorsed  a  blank  bill  of  exchange  in  the  name  of 

1  Smith  v.  Winter,  4  M.  &  W.  454. 

2  Lloyd  v.  Thomas,  79  Penna.  St.  68  (1875). 

3  Martin  v.  Kirk,  2  Humph.  529  (1841);  Parker  v.  Cousins,  2  Gratt.  372 
(1845) ;  Long  v.  Story,  10  Mo.  636  (1S47) ;  Palmer  v.  Dodge,  4  Ohio  St.  21 
(1854). 

4  Wrightson  v.  Pullan,  1  Stark.  375  (1816) ;  Lansing  v.  Gaine,  2  Johns.  300 
(1807). 

5  Woodford  v.  Dorwin,  3  Vt.  82  (1830);  Gale  v.  Miller,  54  N.  Y.  536  (1874), 
affirming  1  Lans.  451  (1868),  44  Barb  420  (1865). 

6  Fletcher  v.  Anderson,  11  Iowa  22S  (1860). 


RENEWALS    AFTER    DISSOLUTION.  595 

his  firm,  and  the  blanks  were,  after  the  death  of  such  part- 
ner, filled  up  and  the  bills  negotiated,  the  other  partners 
were  held  liable  upon  it.1 

§  432.  Renewals  after  Dissolution. — Power  to  bind  a  firm 
by  renewal  of  its  paper,  like  the  original  power  to  make  such 
paper,  expires  on  the  dissolution  of  the  firm.2  And  this  is 
so,  although  the  firm,  before  its  dissolution,  had  arranged 
with  the  officers  of  the  bank  holding  the  paper  for  leave 
to  renew  it  until  a  certain  time,  and  the  renewal  in  dispute 
was  given  within  such  time,  but  after  the  dissolution  of  the 
firm;1  But  to  discharge  the  firm's  liability  for  a  debt  se- 
cured by  its  note,  which  had  been  renewed  by  one  partner 
after  dissolution  of  the  firm,  the  holder  must  have  had 
notice  of  such  dissolution  before  taking  the  renewal  and 
relinquishing  the  original  aote  given  for  the  debt.4  Where 
one  firm  owes  money  to  another  and  upon  its  dissolution  one 
partner  assumes  the  debt,  and  on  the  dissolution  of  the  other 
firm  a  balance  is  found  due  from  it  to  one  of  its  partners,  a 
note  afterwards  made  by  the  partner  assuming  the  debt  of 
the  first  firm  in  the  name  of  his  firm  to  the  individual  part- 
ner of  the  other  firm,  in  whose  favor  the  balance  stood,  for 
such  debt  is  not  in  the  usual  course  of  business  and  will  not 
be  binding  on  the  other  members  of  either  firm.5 

§  433.  Transfer  of  Assets  after  Dissolution. — After  dissolu- 
tion of  a  firm,  one  partner  can  no  longer  transfer  bills  and 
notes  belonging  to  the  firm  so  as  to  bind  the  others  by  his 
indorsement;6  even  though  he  be  the  liquidating  partner,7 

'Usher  v.  Dauncey,  4  Campb  97. 

*  Vernon  v.  Manhattan  Co..  17  Wend.  524  (1837),  affirmed  22  lb.  183-;  Na- 
tional Bank  v.  Norton,  1  Hill  572  (1841);  Palmer  v.  Dodge,  4  Ohio  St.  21 
(1854),  approved  in  Wilson  v.  Forder,  20  lb.  9  (1870);  Moore  v.  Lackman, 
52  Mo.  323  (1S73) ;  Lumberman's  Bank  v.  Pratt,  51  Me.  563  (1863). 

"Bank  of  South  Carolina  v.  Humphreys,  1  McCord  388  (1821). 
♦Brown  v.  Clark,  14  Penna.  St.  469  (1850). 

*  Hicks  v.  Russell,  72  111.  230  (1874). 

8  Byles  53 :  Chitty  66 ;  1  Daniel  345 ;  1  Edwards  \  126 ;  1  Parsons  146 ; 
Dolman  v.  Orchard,  2  C.  &  P.  104;  Anderson  v.  Weston,  6  Bing.  N.  C.  296; 
Abel  v.  Sutton,  3  Esp.  108;  Kilgour  v.  Finlyson,  1  H.  Bl.  155;  Sandford  v. 
Mickles,  4  Johns.  ±.'1  (1809).  See,  however,  Lewis  v.  Reilly,  1  Q.  B.  349 
(1841). 

1  Whitworth  v.  Ballard,  56  InJ.  279  (1877). 


596  CAPACITY PARTNERS. 

and  though  the  transfer  be  made  in  payment  of  a  debt  due 
by  the  firm  before  its  dissolution.1 

After  dissolution  of  a  firm  by  bankruptcy,  the  partners 
will  not  be  rendered  liable  by  an  indorsement  by  one  of  their 
number.2  So,  after  dissolution  by  the  outbreak  of  war,  ren- 
dering the  former  partners  alien  enemies.3  But  it  has  been 
held  that  an  indorsement  by  one  in  the  firm  name  after  its 
dissolution,  will,  at  least,  bind  him  individually.4  And  in 
England  it  is  held  that  such  indorsement  will  be  valid  as  a 
transfer  of  the  paper,  although  not  binding  upon  the  part- 
ners as  an  indorsement.5  And  the  same  rule  has  been 
adopted  in  this  country  in  favor  of  holders  without  notice,6 
and  in  support  of  indorsements  "  without  recourse "  made 
under  an  express  authority  to  sell  such  paper.7  Power  to 
indorse  partnership  securities  after  dissolution  may  be  im- 
plied, like  the  power  to  make  such  instrument.8  And  where 
the  firm  was  bound  by  agreement  to  -indorse  certain  notes 
received  by  it  as  agent,  it  was  held  that  the  liquidating  part-, 
ner  could  render  the  others  liable  by  an  indorsement  and 
guaranty  in  the  firm  name.9 

§  434.  Dissolution  by  Death — Power  of  Surviving  Partner. — 
Thus,  where  an  action  is  brought  upon  a  firm  note  against 
the  estate  of  a  deceased  partner,  it  is  a  good  defense  that  the 
note  was  executed  by  the  other  partner  after  the  dissolution 

1  Humphries  v.  Chastain,  5  Ga.  166  (1848). 
2Byles  54;  Thomason  v.  Frere,  10  East  418. 

3  Bank  of  New  Orleans  v.  Matthews,  49  N.  Y.  12  (1872). 

4  White  v.  Union  Ins.  Co.,  1  Nott.  &  McC.  561  (1819).  Although  the  in- 
dorsement  was  signed  "  B.  &  H.,  old  firm  in  liquidation,"  Fassin  v.  Hub- 
bard, 55  N.  Y.  465  (1874). 

"King  v.  Smith,  4  C.  &  P.  108;  Lewis  v.  Reilly,  1  Q.  B.  349.  But  such 
an  indorsement  after  maturity  of  the  note  was  held  to  pass  no  legal  title 
in  Parker  v.  Macomber,  18  Pick.  505  (1836).  And  the  same  has  been  held 
as  to  notes  not  yet  due  in  the  hands  of  a  liquidating  partner,  Geortner 
v.  Trustees  of  Canajoharie,  2  Barb.  025  (1847);  especially  where  the  trans- 
fer was  made  for  the  partner's  individual  debt,  Fellows  v.  Wyman,  38  N.  H. 
tt'l  (1856).  Unless  the  instrument  is  payable  to  such  partner  individually, 
Temple  v.  Seaver,  11  Cush.  314  (1853). 

6 Cony  v.  Wheelock,  33  Me.  366  (1851) ;  Pitcher  v.  Barrows,  17  Pick.  361 
1835-). 

T  Yale  v.  Barnes,  1  Mete  486  (1840) ;  Waite  v.  Foster,  33  Me.  424  (1851). 

8Byles  53;  Smith  v.  Winter,  4  M.  &  W.  454. 

9  Star  Wagon  Co.  v.  Svvezey,  52  U>\ya  391  (1879). 


DISSOLUTION   BY    DEATH.  5(J7 

of  the  firm.1  Where  a  partnership  has  been  dissolved  by- 
death,  the  surviving  partner  may  indorse  and  transfer  notes 
belonging  and  payable  to  the  firm.2  But  in  Missouri,  though 
he  may  transfer  such  notes  in  payment  of  the  firm  debts,  yet 
if  he  fail  to  give  the  security  required  of  administrators  by- 
law, the  personal  representative  of  the  deceased  partner  may, 
upon  giving  the  required  bond,  recover  the  possession  and 
control  of  such  note  from  the  surviving  partner.3 

Where  a  firm  has  been  dissolved  by  the  death  of  one  part- 
ner, one  of  two  surviving  partners  has  no  power  to  make  an 
assignment  of 'partnership  assets  for  the  benefit  of  creditors 
without  consent  of  the  other.4  And  where  a  firm  has  been 
dissolved  by  the  death  of  one  member,  one  survivor  cannot 
bind  the  others  by  indorsing  a  note,  even  for  a  debt  of  the 
firm,  without  the  consent  or  ratification  of  the  others.5  But 
if  a  surviving  partner  makes  a  transfer  of  firm  assets  in  the 
name  of  the  firm,  it  will  dispose  of  his  own  entire  interest 
in  the  property.6 

The  surviving  partner  cannot  by  delivery  transfer  the  legal 
title  of  his  firm  in  a  note  made  payable  to  the  partnership 
and  indorsed  by  the  deceased  partner.7  And  where  a  sur- 
viving partner,  in  payment  of  a  firm  debt,  makes  a  note  pay- 
able to  the  firm  and  indorses  it  in  the  firm  name  to  the 
creditor,  it  is  the  same  as  though  it  were  made  payable  to  a 
fictitious  person  (the  firm  having  then  no  existence),  and  the 
partner  making  the  same  will  be  liable  as  maker  in  an  action 
brought  on  it  against  him  by  the  payee.8 

'Floyd  v.  Miller,  61  Ind.  224  (1878);  Bank  of  Port  Gibson  v.  Baugh,  9 
Bmedea  &  M.  290  (1848). 

2  Johnson  v.  Berlizheimer,  84  111.  54  (1876);  Bredow  v.  Mutual  Sav.  Inst. 
28  Mo.  181  (1859). 

3  Bredow  v.  Mut.  Savings  Inst.,  supra. 

4  Egberts  v.  Wood,  3  Paige  517  (1832). 

5Carleton  v.  Jenness,  42  Mich.  110  (1879).  Neither  can  a  surviving  part- 
ner renew  an  accommodation  partnership  indorsement,  so  as  to  bind  the 
estate  of  a  deceased  partner,  which  has  been  discharged  by  the  holder's 
failure  to  protest  the  original  note,  on  its  maturing  after  such  partner's 
death,  Central  Savings  Bank  i.  Mead,  52  Mo.  546  (1873). 

6. Tones  v.  Thorn,  2  Mart,  (x.  s.)  463  (1824). 

T Glasscock  v.  Smith,  25  Ala.  474  (1854). 

■Cavitt  v.  James,  39  Tex.  1S9  (1873). 


598  CAPACITY PARTNERS. 

But  where  one  partner  on  the  dissolution  of  the  firm  has 
been  authorized  to  settle  its  debts  and  other  affairs,  he  may 
transfer  a  note  belonging  to  it  and  payable  to  bearer  by  his 
indorsement  without  recourse.1  And  he  may  assign  to  a  firm 
creditor  a  debt  clue  to  the  firm  in  payment  of  such  creditor's 
claim.2  But  it  is  not  a  debt  of  the  firm  where  goods  have 
been  ordered  by  a  firm  but  are  delivered  after  its  dissolution 
to  one  of  the  partners,  and  if  they  are  paid  for  by  an  accept- 
ance by  him  of  a  bill  of  exchange  drawn  on  both,  the  other 
partner  will  not  be  liable  on  such  acceptance.3 

§  435.  Dissolution — When  Admissible  as  a  Defense. — Where 
a  bill  or  note  is  signed  by  one  partner  after  the  dissolution 
of  the  firm,  it  will  be  binding  upon  all  in  the  hands  of  a 
bona  fide  holder  for  value  without  notice  of  the  dissolution.4 
And  this  is  true,  also,  of  indorsements  and  acceptances.5  But 
in  such  case  the  indorsee  must  prove  that  he  took  the  paper 
for  value  and  before  maturity  and  without  notice.6 

Where  a  note  is  given  in  the  firm  name  by  one  member 
after  its  dissolution,  for  money  loaned  by  an  old  customer  on 
the  faith  and  credit  of  the  firm  and  actually  applied  by  the 
partner  obtaining  it  to  the  business  of  the  firm,  the  lender, 
having  no  notice  of  the  dissolution,  may  recover  on  it.7  And 
even  where  the  payee  of  such  a  note  knew  at  the  time  that 
the  firm  had  been  dissolved,  it  would  still  be  binding  upon 
all  the  partners  in  the  hands  of  a  bona  fide  indorsee  for  value 
before  maturity.8     Although  this  was  formerly  held  in  New 

1  Parker  v.  Macomber,  18  Pick.  505  (1836). 
*Milliken  v.  Loring,  37  Me.  408  (1854). 
*Ez  parte  Harris,  1  Madd.  583. 

4  Buffalo  City  Bank  v.  Howard,  35  N".  Y.  500  (1866) ;  Van  Eps  v.  Dillaye,  6 
Barb.  244  (1849) ;  Holtgreve  v.  Wintker,  85  111.  470  (1877) ;  Merrit  v.  Pollys, 
16  B.  Mon.  355  (1855) ;  Stall  v.  Cassady,  57  Ind.  284  (1877) ;  Davis  v.  Willis, 
47  Tex.  154  (1877) ;  Goddard  v.  Pratt,  16  Pick.  412  (1835) ;  Mauldin  v.  Branch 
Bank,  2  Ala.  502  (1841);  Long  v.  Garnett,  59  Tex.  229  (1883).  And  this  is 
true  notwithstanding  a  subsequent  invalid  renewal  of  the  note  after  n*tice 
of  dissolution,  Hammond  v.  Aiken,  3  Rich.  Eq.  119  (1850). 

5  Lacy  v.  Woolcot,  2  Dowl.  &  R.  458;  Wagner  v.  Freschl,  56  N.  H.  495 
(1876). 

6 Clark  v.  Dearborn,  6  Duer  309  (1857). 

'Hunt  v.  Hall,  8  Ind.  215  (1856). 

"Albietz  v.  Mellon,  37  Penna.  St.  367  (1860). 


NOTICE    OF    DISSOLUTION.  599 

York  not  to  be  the  rule  where  the  indorsee  took  such  paper 
merely  as  collateral  for  a  precedent  debt.1  But  a  note  made 
after  dissolution  of  the  firm  will  not  be  binding  upon  it 
in  the  hands  of  the  payee,  although  he  had  no  knowledge 
of  the  dissolution  of  the  firm,  and  took  the  paper  in  pay- 
ment of  an  existing  debt  due  from  the  firm.2  And  such 
payees  are  not  entitled  to  come  in  for  a  share  of  the  assets 
of  the  firm  with  the  firm  creditors.3  On  the  other  hand, 
where  a  firm  has  been  dissolved  by  a  secret  act  of  bank- 
ruptcy, the  solvent  partner  may,  by  accepting  a  bill  of  ex- 
change for  a  previous  partnership  debt,  render  the  firm 
liable,  and  such  acceptance  in  the  hands  of  an  innocent 
holder  may  be  proved  against  the  joint  estate  of  both  part- 
ners on  the  subsequent  bankruptcy  of  the  solvent  partner.4 

It  is  no  defense  that  a  bill  of  exchange  has  been  made 
after  the  dissolution  of  the  firm,  if  it  is  in  the  hands  of  a 
holder  with  notice  deriving  his  title  from  a  holder  for  value 
and  without  notice  before  maturity.5  And  it  has  been  held  in 
Pennsylvania  that  the  plaintiff  is  not  obliged  to  prove  him- 
self a  bona  fide  holder  for  value  before  maturity,  unless  the 
defense  of  dissolution  of  the  firm  has  been  specially  pleaded.8 

§  436.  Notice  of  Dissolution. — Where  a  firm  is  dissolved, 
it  is  the  duty  of  the  partners  to  give  notice  of  that  fact  to 
all  old  customers  of  the  firm,  in  order  to  avoid  liability  for 
contracts  afterwards  made  by  one  another  in  the  firm  name.7 

Bristol  v.  Sprague,  8  Wend.  423  (1832),  where  the  indorser  had  agreed  to 
pay  part  of  the  debt  if  the  note  should  not  be  collected.  But  it  would  be 
otherwise,  if  received  in  payment  and  discharge  of  the  former  debt,  Bank 
Of  St.  Albans  v.  Gilliland,  23*  Wend.  311  (1840). 

2 Morrison  v.  Perry,  11  Hun  33  (1877). 

3Haggerty  v.  Taylor,  10  Paige  261  (1843). 

*Ex  parte  Robinson,  1  Mont.  &  Ayr.  18 ;  S.  C,  3  Dea.  &  Chitty  376 ;  Ex  parte 
Ellis,  Mont.  &  B.  219;  S.  C,  2  Dea.  &  Chitty  555. 

5Byles  52;  Booth  v.  Quin,  7  Price  193;  Boyd  v.  McCann,  10  Md.  (1856). 

6Albietz  v.  Mellon,  37  Penna.  St.  367  (1860). 

'Chitty  64;  1  Daniel  324;  1  Edwards  I  117;  1  Parsons  142;  Parkin  v.  Car- 
ruthcrs,  3  Esp.  248 ;  Bank  of  Commonwealth  v.  Mudgett,  44  N.  Y.  514  (1871), 
affirming  45  Barb.  663;  Wardwell  v.  Haight,  2  Barb.  549  (1848) ;  Simonds  v. 
Strong,  24  Vt.  642  (1852) ;  Dickinson  v.  Dickinson,  25  Gratt,  321  (1874) ;  Na- 
tional Shoe,  &c,  Bank  v.  Herz,  89  N.  Y.  629  (1882);  Buffalo  City  Bank  v. 
Howard,  35  N.  Y.  500  (1866) ;  Dundass  v.  Gallagher,  4  Penna.  St.  205  (1846). 


600  CAPACITY PARTNERS. 

In  general,  such  customers  include  only  those  who  have 
dealt  directly  with  the  firm,  and  not  one  who  has  merely 
dealt  in  paper  drawn  or  indorsed  by  the  firm.1  But  any 
creditor  of  the  firm,  who  has  taken  its  note  in  payment,  is  a 
customer  entitled  to  more  particular  notice  than  the  mere 
public  advertisement  of  dissolution.2  And  where  a  firm  has 
accepted  a  bill  of  exchange  before  its  maturity,  but  after  dis- 
solution of  the  firm  and  after  transfer  of  the  bill  by  indorse- 
ment, a  holder  who  had  taken  previous  acceptances  of  the 
firm  is  entitled  to  notice  of  dissolution,  and  in  the  absence 
of  such  notice  can  hold  the  firm.3  Two  previous  transactions 
have  been  held  to  be  sufficient  to  constitute  one  an  old  cus- 
tomer and  entitle  him  to  such  notice.4  In  the  absence  of 
such  notice,  he  can  hold  all  the  original  partners,  especially 
where  the  business  is  carried  on  after  dissolution  and  the  new 
debt  contracted  without  any  change  of  the  firm  name.5 

In  general,  where  a  firm  is  dissolved  by  the  death  of  a 
partner,  notice  of  the  fact  is  unnecessary.6  So,  if  it  is  dis- 
solved by  operation  of  law,  or  by  any  event  of  public  notori- 
ety, such  as  an  act  of  bankruptcy  or  the  outbreak  of  a  war.7 
In  like  manner,  notice  of  dissolution  is  not,  in  general,  neces- 
sary to  relieve  a  secret  partner  from  liability.8  If,  how- 
ever, such  secret  or  dormant  partner  was  known  to  the 
customer  as  a  member  of  the  firm,  notice  to  him  would  be 

ICity  Bank  v.  McChesney,  20  N.  Y.  240  (1859) ;  Hutchins  v.  Bank  of  Ten- 
nessee, 8  Humph.  418  (1847).  But  a  bank  which  was  in  the  habit  of  dis- 
counting for  the  firm  notes  and  bills  indorsed  by  them  is  entitled  to  notice 
as  an  old  customer  or  dealer,  lb.;  Mechanics'  Bank  v.  Livingston,  33  Barb. 
458  (1861). 

» Graves  v.  Merry,  6  Cow.  701  (1827). 

'Mechanics'  Bank  v.  Livingston,  33  Barb.  458  (1861). 

♦Wardwell  v.  Haight,  2  Barb.  549  (1848). 

5Clapp  v.  Rogers,  12  N.  Y.  283  (1855). 

6Byles  85;  1  Daniel  343;  1  Parsons  143;  Vulliamy  v.  Noble,  3  Mer.  619. 

71  Daniel  343. 

aBvles  53;  Chitty  64;  1  Daniel  322,  343;  1  Edwards  \  118;  1  Parsons  142; 
Ciller  v.  Whalley,  1  B.  &  Ad.  11;  Evans  v.  Drummond,  4  Esp.  89;  New- 
march  v.  Clay  14  East  239;  Heath  v.  Sansom,  4  B.  &  Ad.  172;  S.  C,  1  Nev. 
&  M.  104;  Kellev  v.  Hurlburt,  5  Cow  534  (1826) ;  Vaccaro  v.  Toof,  9  Heisk. 
194  (1872);  Scott  v.  Colmesnil,  7  J.  J.  Marsh.  416  (1832);  Nussbaumer  v. 
Becker,  87  III.  281  (1877) ;  Armstrong  v.  Hussey,  12  Serg.  &  R.  315  (1825) ; 
Grosvenor  v.  Lloyd,  1  Mete.  19  (1840). 


NOTICE    OF    DISSOLUTION.  601 

necessary  as  much  as  in  the  case  of  a  general  partner.1  But 
where,  after  dissolution  of  a  firm  consisting  of  one  active  and 
one  dormant  partner,  a  note  is  made  by  the  active  partner 
in  the  name  of  himself  and  of  the  dormant  partner  to  one 
who  had  no  notice  either  of  the  existence  of  such  firm  or  of 
its  dissolution,  the  dormant  partner  will  not  be  bound.2 

Whether  the  plaintiff  had  actual  notice  of  the  dissolution 
of  a  firm,  where  no  formal  notice  was  given,  is  a  question  of 
fact  for  the  jury.3  So,  where  notice  has  been  given  merely 
by  public  advertisement  in  the  Gazette,  its  sufficiency  as  no- 
tice to  a  new  customer  is  a  question  for  the  jury  and  such 
publication  is  admissible  as  evidence  of  notice  for  the  jury  to 
consider.4  As  regards  new  customers,  public  notice  in  the 
newspapers  is  sufficient  notice  of  dissolution,  and  constitutes 
a  good  defense  in  favor  of  the  several  partners,  without  the 
necessity  of  an  injunction  for  their  protection.5  As  regards 
old  customers,  such  notice  is  insufficient,  without  proof  that 
the  Gazette  is  taken  by  them.6  And  where  such  customer  is 
a  corporation,  it  is  not  sufficient  to  prove  that  the  Gazette 
was  taken  or  seen  by  one  of  its  directors.7  The  usual  and 
prudent  course  as  to  old  customers  of  the  firm  is  to  announce 

'Carter  v.  Whalley,  1  B.  &  Ad.  11;  Thompson  v.  Percival,  3  Nev.  &  M. 
667  ;S.C,5B  &  Ad.  925 ;  Nussbaumer  v.  Becker,  87  111.  281. 

2Cregler  v.  Durham,  9  Ind.  375  (1857). 

3 Dickinson  v.  Dickinson,  25  Gratt.  321  (1874). 

4Bvles  52;  Chitty  67;  1  Edwards  \  119;  Godfrey  v.  Turnbull,  1  Esp.  671; 
Newsome  v.  Coles,  2  Campb.  617;  Farrar  v.  Deflinne,  1  C.  &  K.  580.  So, 
Lansing  v.  Gaine,  2  Johns.  300  (1807),  the  note  in  this  case  being  given  in  a 
matter  foreign  to  the  partnership  business. 

5Chitty  66 ;  Newsome  v.  Coles,  2  Campb.  617  ;  Wrie;htson  v.  Pullan,  1  Stark. 
375  ;  Ex  parte  Liddiard,  2  Mont.  &  Avr.  87  ;  S.  C,  4  Dea.  &  Chit.  603  ;  Mowatt 
v.  Howland,  3  Day  353  (1809) ;  Dickinson  v.  Dickinson,  25  Gratt.  321  (1874). 
And  an  injunction  will  not  be  granted  to  restrain  the  surviving  partners 
from  the  use  of  a  deceased  partner's  name,  Webster  v.  Webster,  3  Swanst. 
490. 

6Byles  52;  Chitty  67 ;  Godfrey  v.  Turnbull,  1  Esp.  371:  Leeson  v.  Holt,  1 
Stark.  186;  Graham  v.  Hope,  Peake  154;  Gorham  v.  Thompson.  lb.  42; 
Rex  v.  Holt,  5  T.  R.  443;  Williams  v.  Keats,  2  Stark.  N.  P.  290;  Martin  v. 
Walton,  1  McCord  16  (1821).  But,  contra,  if  taking  proved,  Bank  of  South 
Carolina  v.  Humphreys,  1  McCord  388  (1821).  See,  too,  Ex  parte  Usburne, 
1  Glyn  &  Jam.  358;  Mimn  v.  Baker,  2  Stark.  255.  And  even  if  the  paper 
be  shown  to  have  been  taken  by  the  party,  this" will  not  always  suffice  for 
proof  of  notice,  e.  g  in  case  of  a  carrier's  notice  limiting  his  responsibility, 
Rowley  v.  Home.  .">  Bing.  3. 

'National  Bank  i>.  Norton,  1  Hill  587  (1841). 


602  CAPACITY PARTNERS. 

the  dissolution  by  an  actual  notice  or  circular.1  And  a  re- 
tiring partner  should  give  notice  for  his  protection  in  the 
same  way,  as  well  as  by  public  notice  in  the  Gazette.2 

§  437.  Implied  Notice. — Notice  of  dissolution  of  a  firm 
may  be  implied  from  circumstances.3  As  regards  a  new  cus- 
tomer, it  may  be  shown  to  be  a  matter  of  public  notoriety.4 
But  mere  local  notoriety  will  have  no  effect  as  notice  to  a 
non-resident  customer.5  Nor  will  it  be  sufficient  notice  to 
an  old  customer  or  creditor  of  the  firm.6 

Where  a  banking  firm  has  changed  its  firm  name,  this 
will  be  sufficient  notice  to  one  using  such  check.7  Where  a 
note  is  sigued  by  a  partnership  "  in  liquidation,"  this  will  be 
a  sufficient  notice  of  its  dissolution.8  And  mere  lapse  of  time 
may  dispense  with  the  necessity  for  notice,  as  has  been  held 
in  the  case  of  a  note  drawn  in  a  firm  name  eleven  years  after 
its  dissolution  and  discounted  by  a  bank  in  another  State 
without  any  inquiry.9 

But  the  formation  of  a  new  partnership  is  not  necessarily 
the  dissolution  of  the  old  one,  and  notice  of  such  new  firm 
being  formed  will  not  take  the  place  of  notice  of  the  dissolu- 
tion of  the  former  firm.10  So,  the  mere  fact  that  a  partnership 
store  had  been  transferred  and  the  firm  had  ceased  to  do  busi- 
ness is  not  sufficient  evidence  of  its  dissolution,  even  to  a  per- 
son living  in  the  same  place.11  Where,  however,  an  attorney 
has  drawn  a  deed  of  dissolution,  this  will  be  sufficient  notice 
to  him  of  the  dissolution,  although  the  deed  was  not  executed 
so  far  as  he  knew ;  and  if  he  afterward  takes  a  note  made  in 

Jenkins  v.  Blizard,  1  Stark.  418. 
2Simonds  v.  Strong,  24  Vt.  642  (1852). 
3Merrit  v.  Pollys,  16  B  Mori.  355  (1855). 
*Lovejoy  v.  Spafford,  3  Otto  430  (1876). 
6Southwick  v.  Allen,  11  Vt.  75  (1839). 
6  Lamb  v.  Irby,  2  Brev.  490  (1811). 

7Byles  52;  Chitty  67 ;  Barfoot  v.  Goodhall,  3  Campb.  147.    See,  too,  Viae 
v.  Fleming,  1  Y.  &  J.  227. 

8Speake  v.  Barrett,  13  La.  An.  479  (1858). 
"Farmers',  &c,  Bank  v.  Green,  1  Vroom  316  (1863). 
"Southwick  v.  Allen,  11  Vt.  75  (1839). 
11  Brown  v.  Clark,  14  Penna.  St.  469  (1850). 


IMPLIED    NOTICE.  603 

the  name  of  the  firm,  the  burden  is  on  him  to  prove  that  the 
intention  to  dissolve  was  abandoned.1 

But  a  notice  may,  be  defeated  by  the  conduct  of  the  par- 
ties who  seek  the  benefit  of  it.  Thus,  where  partners  have 
left  their  firm  name  over  the  door,  they  may  be  liable  to  a 
bona  fide  indorsee  of  their  paper  given  for  subsequent  trans- 
actions in  the  firm  name,  although  such  indorsee  be  a  new 
customer,  and  notwithstanding  a  public  notice  of  dissolution 
in  the  Gazet-te.2  So,  where  the  partner  seeking  to  be  relieved 
from  liability  has  informed  such  customer  that  the  firm  was 
dissolved,  but  his  name  would  continue  in  the  business  for  a 
time.3  So,  where  a  firm  has  been  dissolved  by  bankruptcy, 
but  the  former  partners  afterwards  continue  to  hold  them- 
selves out  as  such.4  And,  in  like  manner,  where  a  former 
partner  declares  that  the  assets  of  the  firm  have  been  left 
in  the  hands  of  the  other  partner  for  the  purpose  of  wind- 
ing up  the  concern,  and  that  he  has  no  objection  to  the  use 
of  the  firm  name  for  that  purpose,  a  jury  may  infer  authority 
on  his  part,  as  we  have  seen,  to  indorse  and  transfer  the 
assets  of  the  old  firm.5 

'Paterson  v.  Zachadah,  1  Stark.  71. 

2Byles  54;  Williams  v.  Keats,  2  Stark.  290.     See,  too,  Newsome  v.  Colea, 
2  Campb.  617;  Stables  v.  Ely,  1  C.  &  P.  614. 
'Brown  v.  Leonard,  2  Chitty  120. 

'Byles  54;  1  Daniel  343 ;  Lacy  v.  Woolcot,  2  D.  &  R.  458. 
'Smith  v.  Winter,  4  M.  &  W.  454;  Graves  v.  Merry,  6  Cow.  701. 


604  CAPACITY PERSONAL   REPRESENTATIVES. 


II.    PERSONAL    REPRESENTATIVES. 

438.  Executors  and  Administrators — Liability  of  Estate. 

439.  Personal  Liability. 

440.  Rights  as  Payee. 

441.  Transfer  by. 

443.  Guardians  and  Trustees — As  Maker. 

444.  As  Payee. 

§  438.  Executors  and  Administrators — Liability  of  Estate. — 
An  executor  or  administrator  cannot  bind  the  estate  of  the 
deceased  person  whom  he  represents  by  giving  a  bill  or  note 
signed  by  him  as  executor  or  administrator.1  Nor  will  the 
estate  be  bound  by  the  executor's  acceptance  of  a  draft  drawn 
on  him  for  a  distributive  share  of  the  estate,  although  the 
funds  of  the  estate  are  still  in  his  hands.2  Nor  can  an  ex- 
ecutor bind  his  testator's  estate  by  giving  a  renewal  of  a  note 
of  the  testator,  which  has  matured  ;3  nor  by  giving  his  note 
as  executor  for  goods  purchased  under  the  express  authority 
of  the  testator's  will.4 

On  the  other  hand,  an  executor  by  giving  his  own  note 
for  a  debt  of  the  estate  does  not  ordinarily  discharge  the  estate 
from  liability,  but  he  may  still  be  sued  as  executor,  in  equity 
at  least;5  unless  the  executor's  note  has  been  taken  in  abso- 
lute payment  of  the  note  or  debt  of  the  testator.6  And,  in 
general,  where  an  executor  has  given  his  note  in  payment  of 
a  debt  of  the  estate  which  he  represents,  the  estate  will  re- 
main liable  for  the  consideration  of  such  note.7  And  a  prom- 
ise on  the  part  of  an  executor  or  administrator  to  pay  a  debt 

^Lynch  v.  Kirbv,  65  Ga.  279  (1880) ;  Funderburk  v.  Gorham,  46  lb.  296 
(1872) ;  Dunne  v.  Deery,  40  Iowa  251  (1875) ;  Kirkman  v.  Benharn,  28  Ala. 
501  (1856);  Gregory  v.'Leigh,  33  Tex.  813  (1870);  Curtis  v.  National  Bank, 
39  Ohio  St.  579  (1883). 

2  Wisdom  v.  Becker,  52  111.  342  (1869). 

3Corntbwaite  v.  First  Nat.  Bank,  57  Ind.  268  (1877);  Erwih  v.  Carrol,  1 
Yerg.  144  (1829). 

4 Even  though  the  note  be  signed  "A.  B.,  executor  of  the  estate  of  C.  D., 
deceased,"  Christian  v.  Morris,  50  Ala.  5S5  (1873). 

5 Douglass  v.  Fraser,  2  McCord  Ch.  105  (1827). 

6Yerger  v.  Foote,  48  Miss.  62  (1873). 

'Dunne  v.  Deery,  40  Iowa  251  (1875). 


PERSONAL    LIABILITY    OF    EXECUTOR.  605 

of  the  testator  may  be  in  consideration  of  assets  of  the  estate 
in  his  hands,  and  will  in  such  case  support  a  judgment  against 
him  de  bo?iis  testatoris.1 

§  439.  Personal  Liability  of  Executor. — Where  a  note  or 
bill  is  given  by  an  executor  or  administrator  as  such,  he  will, 
in  general,  be  individually  liable  for  its  payment.2  So,  upon 
an  indorsement  by  him  as  executor;3  or  upon  his  written 
promise  to  pay  such  debt,  he  having  assets  of  the  estate  in 
his  hands  at  the  time  of  giving  the  promise.4  This  is  true 
also  where  he  has  given  his  note  in  renewal  of  one  made  by 
his  testator.5  In  like  manner,  an  administrator  will  be  indi- 
vidually liable  on  a  note  given  by  him  for  property  purchased 
for  the  benefit  of  the  estate.6  But  a  note  given  by  an  admin- 
istrator, and  expressed  to  be  "For  value  received  by  A.  (the 
intestate)  and  his  heirs,"  has  been  held  to  be  void  for  want 
of  consideration.7 

The  mere  addition  of  "administrator"  to  an  acceptor's  sig- 
nature does  not  qualify  his  liability  or  render  the  acceptance 
of  a  bill  conditional.8  But,  in  general,  an  executor,  like  an 
agent,  must  expressly  limit  his  promise  to  payment  out  of 
the  estate  represented  in  order  to  avoid  individual  liability 
on  it.9  And  merely  adding  the  word  "administrator  "  will 
not  amount  to  such  a  restriction,  as  we  have  seen;  especially 
where  the  estate  administered  is  not  particularly  designated.10 

1  Faxon  v.  Dyson,  1  Cranch  C.  C.  441  (1807) ;  Dixon  v.  Ramsay,  lb.  47:2. 

2Harrison  v.  McClelland,  57  Ga.  531  (1876);  McFarlin  v.  Stinson,  56  Ga. 
896  (1876) ;  Kirkman  v.  Benham,  28  Ala.  501  (1856) ;  Christian  v.  Morris,  50 
lb  585  (1873);  Rittenhonse  v.  Am  merman,  61  Mo.  197  (1876);  Gregorys. 
Leigh,  33  Tex.  813  (1870) ;  Winthrop  v.  Jarvis,  8  La.  An.  434  (1853) ;  Beatty 
v.  Tete,  9  La.  An.  129  (1854). 

3 Livingston  v.  Gaussen,  21  La.  An.  286  (1S69). 

*Sleighter  v.  Harrington,  Repository  &  Term  679;  S.  0.,  2  Taylor  249  (N. 
C.  1818). 

•Cornthwaite  v.  First  Nat.  Bank,  57  Ind.  268  (1877);  Erwin  v.  Carrol,  1 
Yerg.  144  (1829). 

•Funderburk  v.  Gorham,  46  Ga.  296  (1872). 

7Ten  Eyck  v.  Vanderpoel,  8  Johns.  93  (1811). 

BTassey  v.  Church,  4  Watts  &  S.  346  (1842). 

'Child  v.  Monins,  2  Brod.  &  B.  460,  5  Moo.  281;  King  v.  Thorn,  1  T.  R. 
489 ;  Ridout  v.  Bristow,  1  Tyrw.  90 ;  S.  C  ,  1  Cromp.  &  J.  231 ;  Serle  v.  Water- 
worth,  4  M.  cfe  W.  9;  S.  C,  6  Dowl.  684;  Nelson  v.  Serle,  4  M.  &  W.  795; 
Liverpool  Borough  Bank  v.  Walker.  4  DeG.  &  J.  24. 

,0Tryon  v.  Oxley,  3  G.  Greene  289  (1851  |. 


■606  CAPACITY PERSONAL    REPRESENTATIVES. 

It  has  been  held,  however,  that  an  executor  or  adminis- 
trator will  not  be  personally  liable  on  his  bill  or  note  given 
as  such  beyond  the  amomit  of  assets  actually  received  by 
hira,  unless  his  promise  is  founded  upon  other  sufficient  con- 
sideration.1 But  where  the  note  is  given  in  settlement  with 
a  creditor  of  the  estate,  and  in  satisfaction  of  the  debt,  and 
is  made  payable  at  a  future  day,  the  discharge  of  the  debt 
against  the  estate  and  the  indulgence  to  the  administrator 
are  consideration  enough  to  support  his  personal  liability.2 
Especially  where  the  executor  gave  his  own  note  to  take  up 
that  of  his  testator  in  consideration  of  a  definite  agreement 
for  an  extension  of  time.3  Some  new  consideration  other 
than  the  original  indebtedness  of  the  deceased  is  always 
necessary.4  But  an  executor's  note  is  itself  presumptive 
-evidence  of  sufficient  assets  of  the  estate  in  his  hands,  which 
may,  however,  be  rebutted  by  evidence  of  want  of  assets  or 
other  consideration.5 

Where  an  executor  gives  a  note  as  such,  he  is  presumed 
in  Louisiana  to  intend  to  become  personally  liable  on  it,  and 
the  burden  of  proving  the  contrary  rests  on  him.6  And  in 
North  Carolina,  where  such  note  was  given  for  legal  advice 
rendered  to  him  in  his  official  capacity,  he  was  held  person- 
ally liable  upon  it,  and  parol  evidence  was  not  admitted  to 
discharge  him  from  the  liability.7  An  executor  may  even 
become  liable  as  member  of  a  firm  upon  its  paper,  where  he 
represents  a  deceased  partner  and  continues  to  receive  a 
share  of  the  profits  of  the  business  in  the  interest  of  the 
estate.8 

§  440.  Rights   of  Executor  as  Payee. — In    like    manner, 

aBvrd  v.  Hollowav,  6  Sm.  &  M.  199  (1846);  Davis  v.  French,  20  Me.  21 
(1841).     See,  too,  Walker  v.  Patterson,  36  Me.  273  (1853). 

2 Thompson  v.  Maugh,  3  G.  Greene  342  (1851). 

"Mosely  v.  Taylor,  4  Dana  543  (1836). 

4 Hester  v.  Wesson,  6  Ala.  415  (1844). 

5 Bank  of  Troy  v.  Topping,  13  Wend.  557  (1835). 

"Livingston  v.  Ganssen,  21  La.  An.  286. 

'Kessler  v.  Hall,  64  N.  C.  60  (1870). 

'And  this  is  true,  although  his  name  do  not  appear  in  the  firm,  Wightman 
v.  Town  roe,  1  M.  &  S.  412. 


TRANSFER  BY  EXECUTOR.  607 

where  commercial  paper  is  given  to  one  as  executor  or  ad- 
ministrator, such  words  are  held  to  be  merely  descriptio  per- 
sonce,  and  the  bill  or  note  will  be  the  individual  property  of 
the  payee  named.1  This  is  true,  also,  where  one  is  designated 
as  "lawful  attorney  for  A.,  widow  of  D.,  deceased;"  and  such 
attorney  may  maintain  an  action  on  the  note  in  his  own 
name.2  So,  where  the  note  is  made  to  one  as  executor  or 
administrator,  he  may  sue  on  it  in  his  own  name.3 

He  may  also  sue  on  it  in  his  representative  capacity.  And 
if  he  has  renounced  the  executorship  without  bringing  such 
action,  the  administrator  de  bonisnon  may  bring  the  suit  on  it.4 
And  it  has  been  held  that  no  one  but  such  administrator  de 
bonis  7ion  can  sue  in  such  a  case.5  If  the  note  is  given  to 
the  executor  for  a  debt  due  his  testator,  it  will  go  to  such 
administrator.6  But  a  suit  brought  by  an  executor  in  his 
own  right  on  a  bond  given  to  him  as  executor  will  survive 
on  his  death  to  his  representative,  and  not  to  the  adminis- 
trator de  bonis  non  of  his  testator.7  This  has  been  also  held 
as  to  a  note  so  given,  the  note  being  held  to  be  payable  to 
the  executor  individually,  but  the  suit  being  carried  on  by 
his  representative  for  the  use  of  the  administrator  de  bonis 
non  of  his  testator.3  At  common  law,  where  a  note  or  bill 
is  made  to  an  executor  as  such,  he  may  not  only  sue  on  it  in 
his  representative  capacity,  but  in  such  action  may  join  other 
counts  on  promises  to  the  testator.9 

§  441.  Transfer  by  Executor. — An  executor  or  adminis- 

1  Cravens  v.  Logan,  7  Ark.  103  (1846);  Thomas  v.  Relfe,  9  Mo.  373  (1845). 
A  note  must  not,  however,  be  made  payable  to  the  deceased  with  the  inten- 
tion of  vesting  it  in  his  personal  representative,  Valentine  v.  Holloman,  63 
N.  C.  475  (1869). 

2 A uste'.l  v.  Rice,  5  Ga.  472  (1848). 

"Clampittw.  Newport,  S  La.  An.  124  (1856);  Oilman  v.  Horsley,  5  Mart. 
661  (n.  s.  1827);  Carter  v.  Saunders,  2  How.  851  (Miss.  1838). 

'Sheets  v.  Pabody,  6  Blackf.  120  (1842). 

5 Leach  v.  Lewis,  38  Ind.  155  (1871). 

•Catherwood  v.  Chabaud,  1  B.  &  C.  150;  S.  C.,2  Dowl.  &  R.  271 :  Court  v. 
Partridge,  7  Price  591. 

'Hemphill  v.  Hamilton,  11  Ark.  425  (1850). 

8 Cravens  v.  Logan,  7  Ark.  103  (1846). 

"King  v.  Thorn,  1  T.  R.  487. 


608  CAPACITY PERSONAL    REPRESENTATIVES. 

trator  has  power  in  general  to  transfer  and  dispose  of  the 
personal  property  of  the  deceased,  and  this  power  extends  to 
notes  taken  by  him  in  payment  for  property  sold.  He  may 
transfer  such  note  to  a  distributee  of  the  estate  in  payment 
of  his  share  of  the  estate,  and  such  transferee  may  thereupon 
maintain  an  action  in  his  own  name.1  But  such  notes  are 
held  by  the  executor  under  the  same  trust  as  the  property 
represented  by  them,  and  cannot  be  assigned  by  him  to  a 
creditor  of  the  estate  as  collateral  or  otherwise  in  preference 
to,  and  exclusion  of,  other  creditors.2 

An  executor  cannot  transfer  a  bill  or  note  made  to  him  as 
executor  for  a  debt  due  the  estate  in  payment  of  his  individ- 
ual debts.3  And  where  he  has  transferred  for  such  purpose  a 
note  made  to  him  in  payment  for  property  of  the  estate  which 
he  has  sold,  a  subsequent  administrator  de  bonis  non  may  file 
a  bill  in  equity  against  the  assignee  of  such  note  and  ob- 
tain an  injunction  against  its  collection  or  transfer.4  And  in 
such  ease  both  executor  and  assignee  may  be  held  liable 
in  equity  for  the  breach  of  trust,  especially  where  the  char- 
acter of  the  note  is  shown  on  its  face?5  And  where  an  in- 
dorsee has  taken  a  note  under  such  circumstances  with  notice 
of  its  character,  the  indorsement  will  be  set  aside  as  void. 
And  the  fact  of  its  being  payable  to  the  payee  as  executor  or 
administrator  will  be  sufficient  notice  of  its  character.6 

Although  one  of  several  executors  may  transfer  personal 
property  belonging  to  the  estate  of  his  testator,  yet  if-  a 
note  be  made  to  "the  executors  of  A.  B.,"  all  must  join  in 
transferring  it.7  It  has  been  held  that  if  a  note  be  made  or 
transferred  to  one  who  is  dead  by  a  person  ignorant  of  that 
fact,  it  will  amount  to  a  making  or  transfer  of  the  instru- 

1  Clark  v.  Moses,  50  Ala.  326  (1873). 

"Payne  v.  Flournoy,  29  Ark.  500  (1874). 

sBooyer  v.  Hodges,  45  Miss.  78  (1871). 

♦Scott  v.  Searles,  7  Sra.  &  M.  498  (1846). 

'Barwick  v.  White,  2  Del.  Ch.  284  (1861). 

6Booyer  v.  Hodges,  45  Miss.  78  (1871) ;  Miller  v.  Helm,  2  Sm.  &  M.  687 
(1843). 

7Sanders  v.  Blain.  6  J.  J.  Marsh.  446  (1831) ;  Smith  v.  Whiting,  9  Mass.  334 
(1S12) ;  Johnson  v.  Mangum,  65  N.  C.  146  (1871). 


TRANSFER  BY  EXECUTOR.  609 

ment  to  his  personal  representative.1  But  such  a  transfer 
made  knowingly,  with  the  intention  of  investing  the  execu- 
tors with  the  property,  is  null  and  void.2 

On  the  death  of  the  holder  of  a  bill  of  exchange  or  note, 
the  right  to  transfer  it  passes  to  his  executors  or  adminis- 
trators.3 And  an  indorsement  by  them  is  as  effectual  as  if 
made  by  the  deceased  payee.4  An  executor  may  transfer  a 
note  belonging  to  his  testator  as  collateral  security  for  a  judg- 
ment rendered  against  the  testator.5  But  he  cannot  transfer 
without  indorsement  a  note  payable  to  the  order  of  his  tes- 
tator so  as  to  pass  a  legal  title.6 

§  442.  On  the  other  hand,  where  the  testator  has  trans- 
ferred a  negotiable  note  before  its  maturity  by  delivery 
without  indorsement,  it  may  be  subsequently  indorsed  by  his 
administrator  with  the  same  effect  as  if  done  by  himself.7 
And  if  such  delivery  was  made  upon  good  consideration  with 
an  agreement  for  indorsement  which  the  testator  afterward 
refused  to  perform,  his  executor  may  be  compelled,  by  a  bill 
in  equity,  to  make  such  indorsement.8  But  an  executor  can- 
not, by  delivery,  complete  the  transfer  of  a  bill  which  has 
been  indorsed  and  not  delivered  by  his  testator.9  Nor  can 
he  deliver  a  note  payable  to  his  testator  and  indorsed  in 
blank  by  him.10  Nor  can  an  executor  complete  an  accommo- 
dation indorsement  of  his  testator  which  was  delivered  after 
the  testator's  death,  in  ignorance  of  that  event,  to  one  who 
discounted  the  note  so  indorsed  on  the  strength  of  it ;  and 

1  Murray  v.  East  India  Co.,  5  B.  &  Aid.  204. 

2  Valentine  v.  Holloman,  63  N.  C.  475  (1869). 

'Rawlinson  v.  Stone,  3  Wils.  1 ;  S.  C.,  3  Stra.  1260;  Clark  v.  Moses,  50  Ala. 
326  (1874) ;  Owen  v.  Moody,  29  Miss.  79  (1855) ;  Hamrick  v.  Craven,  39  Ind. 
241  (1872) ;  Makepeace  v.  Moore,  10  111.  474  (1849) ;  Cahoon  v.  Moore,  11  Vt. 
604  (1839). 

4Watkins  v.  Maule,  2  Jac.  &  W.  243. 

5  Wheeler  v.  Wheeler,  9  Cow.  34  (1828). 

•Taylor  v.  Surget,  14  Hun  116  (1878). 

'Malbon  v.  Southard,  36  Me.  147  (1853). 

'Smith  v.  Pickery,  Peake  50. 

'Bromage  v.  Lloyd,  1  Exch.  32;  Clark  v.  Boyd,  2  Ohio  57  (1825). 

^Clark  v.  Sigourney,  17  Conn.  510  (1846). 

2o 


610  CAPACITY PERSONAL    REPRESENTATIVES. 

the  estate  of  the  testator  will  not  be  bound  by  a  fresh  deliv- 
ery by  the  executor.1 

As  has  been  said,  one  of  several  executors  may  transfer  a 
note  or  bill  payable  to  their  testator,2  although  this  has  been 
questioned.3  And  it  has  been  held  in  New  York,  that  one 
of  two  executors  may  even  transfer  a  bond  and  mortgage 
made  to  them  in  their  representative  capacity.4  A  transfer 
by  an  executor  in  the  State  where  he  is  appointed,  will  en- 
able the  transferee  to  sue  in  another  State  in  his  own  name.6 
Where  the  executor  adds  to  his  signa-ture  in  an  assignment 
the  words  "  executor  and  devisee,"  this  will  be  notice  to  the 
assignee  of  the  will  and  its  contents ;  and  if  the  transfer  be 
made  in  consideration  of  an  individual  debt  of  the  executor 
or  a  partnership  debt  of  his  firm,  the  assignee  will  take  the 
instrument  with  notice  of  the  breach  of  trust  on  the  execu- 
tor's part.6  But  where  an  executor  charges  himself  with  the 
amount  of  a  note  belonging  to  his  testator,  he  thereby  be- 
comes the  owner  of  it.7  He  cannot,  however,  acquire  claims 
against  the  estate  for  less  than  their  actual  value  bv  false 
representation  as  to  the  responsibility  and  sufficiency  of  the 
estate,  and  then  hold  them  against  the  estate ;  but  a  claim  so 
acquired  will  be  held  by  him  for  the  benefit  of  the  estate.8 

§  443.  Guardians  and  Trustees— As  Maker. — The  rule  as 
to  guardians  and  trustees  is  the  same  as  that  which  governs 
executors  or  administrators.  Where  a  guardian  gives  a  note 
he  will  be  personally  liable  for  its  payment,?  and  may  be 
sued   upon  it  as  his  individual  note.10    More  especially  he 

'Michigan  Ins.  Co.  v.  Leavenworth,  30  Vt.  11  (1856). 

'^Dwiiihtt;  Newell,  15  111.  333  (1854).  See,  too,  Johnson  v.  Mangum,  65 
N.  C  146  (1871). 

3  Winter-bottom's  Case,  1  Dennison's  C.  C.  51 ;  S.  C,  2  Car.  &  K.  37.  In  this 
c.iise  the  indorsement  was  held  sufficient  to  sustain  an  indictment  for  forgery. 

4Hertell  v.  Bogert,  9  Paige  52,  4  Hill  492  (1842). 

5Grace  v.  Hannah,  6  Jones  94  (1858). 

6 Miller  v.  Williamson,  5  Md.  219  (1853). 

TDunlap  v.  Newman,  47  Ala.  -129  (1872) ;  Buie  v.  Pollock,  54  Mia*.  9  (1877). 

8 Burton  v.  Slaughter,  26  Gratt.  914  (1875). 

■Forster  v.  Fuller,  6  Mass.  5S  (1809). 

"•Robertson  v.  Banks,  1  Sm.  &  M.  666  (1844). 


GUARDIAN    OR    TRUSTEE    AS    PAYEE.  611 

cannot  render  the  estate  of  his  ward  liable  by  giving  a  note 
as  surety  for  a  third  person.1  And  he  will  be  individually 
liable  even  upon  a  note  given  for  services  rendered  to  his 
ward,  although  he  may  in  such  case  charge  the  ward's  estate 
with  the  amount  paid.2  In  Louisiana  it  has  been  held  that 
a  guardian  will  not  incur  an  individual  liability  for  a  draft 
given  for  the  benefit  of  his  ward  in  the  management  of  the 
ward's  plantation,  even  though  the  draft  be  not  signed  by 
him  as  guardian.3  In  Texas,  where  a  note  is  given  by  a 
guardian  as  such  and  action  brought  upon  it,  execution  will 
be  rendered  against  the  guardian  without  reference  to  the 
course  of  administration  of  the  estate.4  But  in  a  suit  to 
recover  on  such  a  note  against  the  estate  of  the  ward,  judg- 
ment should  not  be  rendered  against  the  guardian  person- 
ally.5 Where  drafts  are  signed  by  commissioners  as  such, 
they  have  been  held  to  bind  them  individually.6  So,  a  note 
indorsed  or  signed  "A.  B.,  receiver,"7  but  not  a  note  signed 
"C.  D.  by  her  trustee  A.  B."8  A  guardian  cannot  bind  his 
ward's  estates  in  Louisiana  by  giving  a  note  as  such  without 
judicial  authority  and  without  benefit  accruing  to  the  estate.9 
But  in  that  State  the  maker  of  a  note,  signed  without  any 
word  which  designates  him  as  guardian,  may  prove  by  parol 
that  the  note  was  given  by  him  as  such  in  consideration  of 
a  debt  due  from  his  ward.10 

§  444.  Guardian  or  Trustee  as  Payee. — A  guardian,  like 
an  executor,  may  transfer  a  note  made  to  him  as  such,  and 
one  who  takes  it  without  notice  of  any  breach  of  trust  will 

1  McGavock  v.  Whitfield,  45  Miss.  452  (1871) ;  Shiff  v.  Shiff,  20  La.  An.  269 

(1868). 

"Poole  v.  Williams,  42  Ga.  539  (1871). 
"Lapeyre  v.  Weeks,  28  La.  An.  664  (1876). 
♦Gibson  v.  Irby,  17  Tex.  173  (1856). 
&McDaniel  v.  Mann,  25  Tex.  101  (1860). 
•Eaton  v.  Bell,  5  B.  &  Aid.  34. 
7Towne  v.  Rice,  122  Mass.  67  (1877). 
8Taylor  v.  Shelton,  30  Conn.  122  (1861). 
9  Johnson's  Succession,  4  La.  An.  253  (1849). 
10 Leonard  v.  Hudson,  12  La.  An.  840  (1S57). 


612  CAPACITY PERSONAL    REPRESENTATIVES. 

acquire  a  good  title  by  such  transfer.1  But  where  he  has 
transferred  such  a  note  in  payment  of  an  individual  debt  of 
his  own  to  one  having  knowledge  of  that  fact,  there  can  be 
no  recovery.2 

Where  a  note  is  made  to  one  as  guardian,  he  may  sue 
upon  it  in  his  own  name  and  right,3  even  after  the  expiration 
of  his  office.4  And  after  his  death  his  executor  may  sue  on 
it.5  But  a  guardian  cannot  surrender  or  cancel  a  note  made 
to  his  ward  and  take  a  worthless  security  in  lieu  of  it.6  Nor 
can  a  guardian,  who  has  taken  a  note  to  himself  in  such 
capacity,  credit  upon  it  an  individual  debt  of  his  own  to  the 
maker  of  the  note,  although  then  solvent.7  But  where  a 
note  is  made  to  a  guardian,  the  debts  of  his  ward  are  a 
proper  set-off  against  it.8  Where  a  guardian  has  loaned 
funds  belonging  to  his  ward  and  taken  a  note  for  the  loan 
payable  to  himself  individually,  he  cannot  afterwards,  upon 
the  insolvency  of  the  borrower,  show  that  the  note  was  taken 
by  him  as  guardian  for  the  funds  of  his  ward.9 

A  bill  or  note  made  to  one  as  "trustee"  has  been  held  not 
to  be  commercial  paper  and  an  indorsement  by  the  trustee 
transfers  it  subject  to  the  trust.10  But  where  a  note  is  made  to 
one  as  trustee  of  his  wife,  it  has  been  held  that  he  may  make 
a  transfer  of  it  without  her  joining  in  the  transfer.11 

I  Fountain  v.  Anderson,  33  Ga.  372  (1862);  Thornton  v.  Rankin,  19  Mo. 
193  (1853). 

2Coons  v.  Kendall,  27  La.  An.  443  (1875). 

3 Bingham  v.  Calvert,  13  Ark.  399  (1853). 

*Zachary  v.  Gregory,  32  Tex.  452  (1870). 

•Chitwood  v.  Cromwell,  12  Heisk.  658  (1874). 
Smith  v.  Dibrell,  31  Tex.  239  (1868). 

7Baughn  v.  Shackleford,  48  Miss.  255  (1873). 

•Nickerson  v.  Gilliam,  29  Mo.  456  (1860). 

9Knowlton  v.  Bradley,  17  N.  H.  458  (1845). 

*Third  Nat.  Bank  of  Baltimore  v.  Lange,  51  Md.  138  (1878) ;  Sturtevant  v. 
Oaques,  14  Allen  523  (1867).  So,  of  a  certificate  of  stock,  Shaw  v.  Spencer, 
100  Mass.  382  (1868). 

II  Westmoreland  v.  Foster,  60  Ala.  448  (1877). 


INDEX  TO  VOL  I. 


INDEX  TO  VOL.  I. 


Reference  is  to  Sections. 

A. 

"A.  OR  BEARER," 

a  note  payable  to,  is  equivalent  to  one  payable  to  bearer,  175. 

formerly  such  notes  were  not  negotiable,  175. 

such  notes  are  now  negotiable  as  fully  as  if  payable  to  "order,"  175. 

in  some  States  they  are  assignable  by  indorsement  only,  175. 

a  note  payable  "to  the  bearer,  A."  is  payable  to  A.  only,  and  is  not  negotiable,  175 

"A.  B.  BEARER," 

a  note  payable  to,  is  payable  to  A.  B.  only,  160. 
such  a  note  is  non-negotiable,  160. 

when  a  note  by  two  persons  is  payable  to  one  of  them  "or  bearer,"  the  bearei 
may  sue  both  makers,  160. 

although  the  payee  named  could  not,  160. 

"A.  B.  OR  BEARER,"  a  note  payable  to, 

at  common  law,  is  equivalent  to  one  payable  to  bearer  only,  160. 

such  a  note  is  transferable  by  delivery,  160. 

the  holder  need  not  prove  title,  160. 

the  declaration  need  only  aver  possession,  160. 

if  transferred  by  the  indorsement  of  A.  B.  the  indorsement  need  not  be  proved,  160. 

such  a  note  may  be  delivered  to  any  person,  160. 

in  Ohio  there  is  a  distinction  between  such  notes  and  sealed  notes  payable  to  A. 
B.  or  bearer,  160. 

a  sealed  note  so  payable  can  only  be  transferred  by  indorsement,  160. 

in  Illinois  a  distinction  is  made  between  notes  payable  to  "bearer"  and  those 
payable  to  "A.  B.  or  bearer,"  160. 

so  in  Missouri,  Alabama  and  Texas,  160. 

a  note  payable  "  to or  bearer"  the  original  holder  may  sue  upon  it  with- 
out filling  the  blank,  160. 

what  averments  and  proof  are  necessary  in  actions  on  such  notes,  160. 

"A.  B.  OR  HOLDER," 

a  note  payable  to,  is  equivalent  to  one  payable  to  bearer  only,  160. 
"holder"  may  have  the  same  effect  as  "bearer,"  160. 

a  note  payable  "to  the  order  of  the  indorser"  may  be  sued  on  by  any  bona  fide 
holder,  160. 

ACCEPTANCE, 
defined,  5. 
the  simplest  form  is  by  the  word  "  accepted  "  written  across  the  face  of  the  bill 

over  the  acceptor's  signature,  5. 
a  promise  to  accept  is  often  equivalent  to  an  actual  acceptance,  5. 
of  checks,  8. 

(615) 


616 


INDEX. 


Referenoe  is  to  Sections. 

ACCEPT A  NCE— Continued. 

letter  of  credit  is  an  agreement  for,  10. 
is  governed  by  the  law  of  the  place  of  acceptance,  36. 
and  not  by  the  domicile  of  the  acceptor,  36. 
by  parol — sufficiency  determined  by  lex  loci  contractus,  21. 
agreement  for — construction  by  lex  loci  contractus,  21. 
See  Acceptor. 

Presentment: 

presentment  for,  240. 

any  part  of  a  bill  may  be  presented  for,  240. 

if  there  are  several  parts,  the  presentment  should  be  made  mora 
promptly,  240. 

when  the  first  part  is  delayed  the  second  should  be  forwarded  for  pre- 
sentment and  acceptance,  240. 

the  drawee  should  accept  only  one  part,  240. 

Delivery : 

delivery  is  necessary  to  complete  an  acceptance,  216. 

an  acceptance  may  be  canceled  before  its  delivery,  216. 

an  acceptance  on  an  incomplete  bill  has  no  effect  until  the  bill  is  com- 
pleted and  delivered,  216. 

may  be  without  delivery,  216. 

when  the  acceptor  detains  the  bill  in  his  possession  an  unreasonable 
length  of  time,  216. 

statutes  on  this  point,  216. 

Date: 

Date  of,  83. 

is  usually  dated,  83. 

should  always  be  dated,  83. 

but  immaterial,  except  when  payable  a  given  time  after  sight  or  accept- 
ance, 83. 

time  of  payment  is  then  reckoned  from  the  date  of  the  acceptance,  83. 

the  date  of  an,  is  presumptively  the  time  when  it  was  made,  83. 

if  no  express  date  the  bill  is  presumed  to  have  been  accepted  on  its 
date,  83. 

or  at  least  before  its  maturity,  83. 

evidence  is  admissible  to  show  actual  time  of,  83. 

Blank : 

the  signature  of  the  drawer  may  be  added  after  a  blank  acceptance,  185. 

in  blank  may  be  filled  after  acceptor's  death,  373. 

when  the  name  of  the  drawee  is  omitted  an  acceptance  supplies  the 

omission,  171,  185. 
a  blank  acceptance  authorizes  the  holder  to  write  over  the  acceptor's 

signature  a  special  acceptance  payable  at  a  particular  place,  186. 
so,  filling  does  not  discharge  an  accommodation  indorser,  186. 
when  the  place  of  payment  is  named,  the  acceptance  in  blank  is  to  pay 

at  that  place,  122. 

Place  of  -payment : 

when  default  is  made  in  accepting  at  the  place  on  which  it  is  drawn, 
drawer  is  liable  for  its  payment  at  that  place,  122. 


INDEX.  617 

Reference  is  to  Sections. 

ACCEPTANCE—  Continued. 

if  no  place  be  named,  the  acceptance  is  to  pay  generally,  122. 

the  acceptor  may  qualify  and  limit  his  contract  to  one  for  payment  at  a 
particular  place,  122. 

this  may  be  done  by  accepting  "  payable  at,"  &c,  122. 

or  by  simply  adding  his  address  to  his  signature,  122. 

but  in  England,  by  statute,  the  acceptor  must  accept  a  bill  specially  pay- 
able  at  a  specified  place  "  only  and  not  elsewhere  "  to  limit  his  liabil- 
ity to  payment  at  such  place,  122,  126. 

Agents : 

principal  indicated  as  acceptor  by  drawee's  name,  145. 

if  bill  is  drawn  upon  the  principal  and  accepted  by  the  agent  in  his  own 
name  it  is  the  acceptance  of  the  principal  and  not  of  the  agent,  145. 

a  bill  drawn  upon  a  company  and  "  accepted  by  order  of  the  It.  S.  G. 
Company,  W.  E.,  Secretary,"  or  drawn  on  the  company  by  a  wrong 
name  and  "accepted  A.  B.,  Manager,"  or  drawn  on  a  company  and 
"  accepted  A.  B.,  Directors,"  &c,  is  an  acceptance  by  the  corporation, 
145,  335  n. 

but  when  a  bill  is  drawn  on  the  agent  "  and  owners  "  of  a  vessel  and  ac- 
cepted by  the  agent  only  in  his  individual  name,  he  alone  is  liable, 
145. 

for  other  illustrations,  see  139,  145. 

admits  the  authority  of  the  drawer  as  agent  to  draw,  360. 

payment  of  previous,  is  prima  facie  evidence  of  agent's  authority,  363. 

may  be  directed  to  one  in  an  official  capacity  and  so  accepted,  or  vice 
versa,  171. 

acceptance  by  a  public  officer,  350. 

"  John  B.  Floyd,  Secretary  of  War,"  the  government  is  not  liable  on  such 
an,  350. 

Partners  and  partnership : 

bill  drawn  upon  and  accepted  by  a  partnership  in  firm's  name  binds  all 

the  partners,  171. 
but  the  holder  need  only  sue  those  members  of  the  firm  who  were 

known  to  him  wben  he  took  the  bill,  171. 

by  firm  having  a  common  partner  prima  facie  binding  on  the  firm,  404. 

where  a  bill  is  signed  with  a  fictitious  name  and  made  payable  to  the  drawer's 

own  order,  an  acceptance  will  be  construed  to  bind  the  acceptor  to  pay  upon 

the  order  of  the  person  who  actually  drew  the  bill,  148. 

In  Germany  a  valid  acceptance  may  be  based  on  a  bill  in  the  name  of  a  fictitious 

drawer,  148. 
acceptance  when  the  drawee's  name  appears  on  the  bill,  171. 
at  common  law  the  name  of  the  drawee  need  not  appear  on  the  bill,  171. 
cannot  be  directed  to  one  person  and  accepted  by  another,  171. 
may  be  drawn  on  several  persons  and  accepted  by  one,  171. 
declaring  upon  such  an  acceptance,  171. 
an  indorsement  cannot  be  changed  into  an  acceptance  without  material  alteration, 

171. 
a  bill  may  be  addressed  "at"  instead  of  "to"  the  drawee,  171. 
or  it  may  be  directed  to  a  particular  house  instead  of  to  the  drawee  by  name,  17L 


618  INDEX. 

Reference  is  to  Sections. 

ACCEPT  ANCE— Continued. 

when  an  instrument  in  the  form  of  a  promissory  note  ie  addressed  to  and 
accepted  by  some  third  person  such  an  instrument  may  be  treated  at  the 
option  of  the  holder  as  a  bill  or  note,  171. 

ACCEPTANCE  SUPRA  PROTEST, 

defined,  5. 

is  sometimes  called  acceptance  for  honor,  4,  5. 

forms  of,  5  n. 

>  <CEPTOR, 

defined,  4. 

discharge  by  foreign  insolvency,  58. 

effect  of  an  insolvent  discharge  granted  under  the  law  of  the  place  of  original 

contract,  58. 
when  the  holder  knew  that  the  payee's  name  was  fictitious  and  discounted  the 

bill  for  the  drawer's  accommodation  he  cannot  recover  against  the  acceptor,  163. 
but  when  the  acceptor  knew  that  the  payee's  name  was  fictitious  he  is  liable  to  a 

bona  fide  holder,  164. 
on  common  counts,  164. 
knowing  the  drawer's  signature  and  indorsement  to  be  forged,  he  cannot  deny 

either  the  drawing  or  indorsement,  163. 
it  is  only  necessary  to  prove  the  signature  and  indorsement  to  have  been  made 

by  the  same  person,  164. 
as  evidence  of  the  acceptor's  knowledge  other  similar  acceptances  are  admissible 

in  evidence,  164. 
and  in  an  action  by  a  bona  fide  holder  against  the  acceptor  the  plaintiff*  need  not 

prove  consideration  in  the  first  instance,  164. 
the  acceptance  of  a  bill  payable  to  a  fictitious  payee  for  the  honor  of  the  drawer 

is  liable  by  force  of  an  estoppel,  though  ignorant  that  the  payee's  name  is 

fictitious  and  the  drawer's  signature  is  a  forgery,  164. 
when  payee's  name  is  blank  the  acceptor  is  liable  only  on  proof  of  the  holder's 

authority  to  fill  such  blank  with  his  own  name,  167. 

Conflict  of  laws  : 

liability  of,  regulated  by  the  lex  loci  contractus,  21. 

so  as  to  interest  and  damage  to  be  paid,  22,  33,  41. 

the  place  of  contract  is  itself  not  always  apparent,  22. 

but  the  place  of  payment  will  determine  the  acceptor's  liability  if  such 

place  is  expressed  in  the  instrument,  28. 
but  if  the  bill  is  payable  generally  this  is  not  the  rule,  28,  33. 
in  Scotland  an  acceptance  is  presumably  payable  at  the  place  where  the 

acceptor  resides  at  the  maturity  of  the  bill,  33. 
an  accommodation  acceptor  will  be  governed  by  the  law  of  the  place 
where  the  bill  is  first  negotiated,  25,  50. 
blank  acceptance   coupled   with   an   interest   may   be   filled  in  after  death  of 

acceptor,  183. 
if  accepted  for  accommodation  of  one  partner,  afterwards  transferred  to  his  firm. 

the  firm  cannot  recover  against  the  accommodation,  402. 
acceptance  admits  authority  of  the  drawer  as  such,  360. 

Sec  Acceptance — Administrators — Agents— Executors — Guardians 
— Infants— Lunatics — Married  Woman— Partners  and  Part- 
nership. 


INDEX.  619 

Reference  is  to  Sections. 

ACCOMMODATION  PAPER, 

defined,  15. 

is  a  valid  consideration,  15. 

knowledge  of  by  bona  fide  holder,  15. 

an  accommodation  acceptor  will  be  governed  by  the  law  of  the  place  where  the 

bill  is  first  negotiated,  25,  50. 
an  accommodation  indorsement  made  in  one  State  and  delivered  in  another  is 

governed  by  the  law  of  the  latter  State,  25. 
it  is  prima  facie,  if  bill  is  payable  at  the  drawer's  house,  122. 
death  extinguishes,  221. 
by  married  woman,  291. 

where  note  of  party  accommodated  is  surrendered,  291. 
blank  signature  cannot  be  filled  after  death  of  accommodation  party,  183  n. 
an  executor  cannot  complete  an  accommodation  indorsement  of  testator,  442. 
indorsement  by   agent   to  principal  for  accommodation   merely,  not  liable  to 

principal,  384. 

Partners  and  partnership : 
by  partners. 

have  no  power  to  give,  419. 
by  indorsement,  419. 

good  defense  against  party  with  knowledge,  419. 
guaranty,  419. 
surety,  419. 
partner  giving  is  liable  individually,  419. 

an  acceptance  by  a  partner  in  consideration  of  similar  accept- 
ances for  the  firm  by  the  drawer,  firm  liable,  419. 
"surety"  added  to  signature  presumption  that  it  is,  419. 
burden  on  holder  to  rebut  the  presumption,  419. 
note  of  one  partner  guaranteed  by  the  firm  is  notice  that  it  is,  419. 

blank  acceptance  in  firm  name  is  notice  that  it  is,  419. 
blank  draft  signed  by  firm,  drawer  authorized  to  fill  it  up,  419. 
if  given  by  consent  of  all  partners  the  firm  is  liable,  420. 
such  consent  may  be  express  or  implied,  420. 
not  necessary  that  it  should  be  executed  under  a  special  author- 
ity, 420. 

promise  to  pay  afterwards  binds  firm,  420. 

such  consent  will  include  a  renewal  of  note  after  dissolution, 

420. 
injunction  to  prevent  the  giving  of  by  member  of  a  firm,  420. 
burden  on  holder  to  show  that  consent  was  given,  421. 
a  subsequent  ratification,  421. 
must  be  clearly  shown,  421. 

By  partners  consenting : 

not  sufficient  to  show  consent  that  holder  made  inquiries  at  bank  where 

firm  did  business,  421. 
proof  of  a  habit  of  giving  will  not  be  evidence  of  the  firm's  assent,  421 
not  conclusive  evidence  of  consent  that   blanks   for  date   and   rate  of 

interest  were  left,  421  n. 


620  INDEX. 

Reference  is  to  Sections. 

ACCOMMODATION  PAPER— Continued. 

when  the  benefit  is  received  by  the  firm,  firm  liable,  422. 
no  defense  against  a  bona  fide  holder,  422. 
who  is  not  a  bona  fide  holder  in  such  case,  422. 
transfer  under  suspicious  circumstances,  422. 
when  shown  to  be  for  accommodation  the  burden  of  showing  good 

faith  is  shifted  on  holder,  422. 
presumed  to  be,  when  discounted  for  the  drawer,  payable  to  a  firm, 
422. 
payable  to  one  firm  indorsed  by  another  firm  by  a  common  partner,  not 

notice  of  its  character,  422. 
admission  that  it  was  not  by  member  of  firm,  400. 

Corporations : 

by  corporations,  334 
is  ultra  vii-es,  334. 

cannot  be  ratified  by  the  corporation,  334 

a  president  of  a  company  cannot  bind  the  company  by  an  accommoda- 
tion indorsement,  368  n. 
nor  can  a  national  bank  become  an  accommodation  indorser,  334. 
has  no  power  to  guarantee  the  debt  of  another,  334. 
a  railroad  transfers  property  with  a  guaranty  and  receives  the  pro- 
ceeds, is  estopped  from  setting  up  a  want  of  power,  334. 
railroad  may  guarantee  township  bonds  on  transferring,  when  given 

to  the  company  to  aid  in  its  construction,  334. 
the  guaranty  in  such  case  is  an  original  contract,  334. 
though  ultra  vires,  it  is  good  in  the  hands  of  a  bona  fide  holder,  334. 
if  executed  in  violation  of  express  statute  is  a  good  defense  at  the 
suit  of  a  bona  fide  holder,  334. 
Agents : 

a  general  power  by  principal  to  give  a  bill  or  note  does  not  include, 
361. 
if  given  by  the  agent  with  principal's  consent  and  to  take  up  other  sim- 
ilar paper  upon  which  he  was  liable,  he  would  be  bound,  361. 
ACCOUNT, 

to,  is  equivalent  to  a  promise  to  pay,  87. 
so,  "to  be  accountable  for,"  87. 

ACCOUNTABLE, 

to  be,  is  equivalent  to  a  promise  to  pay,  87. 

ACKNOWLEDGMENT, 

a  mere,  of  indebtedness  is  not  in  general  sufficient  to  constitute  a  bill  or 
note,  88. 
though  in  Georgia  it  is  sufficient  to  take  a  case  out  of  the  Statute  of  Limitations,  88. 
in  some  of  the  States  by  statute  it  is  sufficient  to  constitute  a  promissory  note,  88. 

ACTION, 

By  whom: 

by  administrator  of  principal  on  an  indorsement  from  his  agent  in  ignor- 
ance of  the  principal's  death,  150. 
the  holder  as  bearer  cannot  firing  an,  if  instrument  designates  no  payees 
150. 


INDEX.  621 

Reference  is  to  Sections. 
ACTION—  Continued. 

by  the  parties  to  the  note  on  the  original  consideration,  150. 

interest,  warrant  or  coupon  detached  from  corporation  bond,  150. 

by  the  payee  of  a  due  bill  in  Illinois  where  no  payee  was  expressed,  150. 

by  A.  on  bill  to  order  of  A.,  151. 

by  purchaser  from  A.  only  after  indorsement  by  A.,  151. 

By  a  married  woman: 

not  at  common  law,  320. 

and  so  now  in  some  of  the  States,  320. 

though  her  husband  has  not  been  heard  from  for  seven  years,  320. 

both  may  sue,  320. 

husband  may  sue  alone,  320. 

husband  may  sue  in  his  own  name  on  a  note  made  to  his  wife  in  her 

maiden  name,  320. 
when  husband  brings  suit  on  a  note  made  to  the  wife,  a  debt  of  hers 

cannot  be  set  off  against  the  note,  320. 
the  husband  may  proceed  in  equity  without  joining  his  wife,  for  an  in- 
junction against  a  third  person  to  prevent  his  collecting  or  disposing 

of  a  note  belonging  to  the  wife,  320. 
and  when  a  wife  as  administratrix  takes  a  bond  payable  to  herself  and 

husband,  the  husband  may  sue  upon  it  alone,  320. 
so  of  notes  and  bills  which  are  the  common  propertv  of  husband  and 

wife,  320. 
in  Louisiana  the  husband's  authority  to  have  and  collect  the  note  will 

be  presumed,  320. 
in  New  York  before  a  recent  statute  the  husband   must  join  the  wife 

and  could  not  sue  upon  note  alone,  320. 
when  one  of  several  makers  of  a  joint  note  pleads  her  coverture  tbe 

plaintiff  may  discontinue  as  to  her  and  proceed  against  the  others, 

287. 
but  in  some  of  the  States  she  may  sue  alone  without  joining  her  hus- 
band, 320. 
when  a  note  to  the  wife  is  not  reduced  by  the  husband  to  possession  and 

both  die,  the  husband's  executor  cannot  bring  suit  upon  it,  325. 
when  acting  as  a  sole  trader  in  England  she  must  in  her  suit  join  her 

husband,  298. 
nor  is  she  liable  to  be  sued  alone  in  those  courts,  298. 
in  Massachusetts  a  married  woman  doing  business  for  herself  as  a  sole 

trader  may  sue  alone  upon  a  note  held  by  her,  299. 
so  in  New  York  since  statute  of  1848  and  1849,  300. 
between  husband  and  wife,  316. 
by  indorsee  of  the  husband,  316. 
by  indorsee  of  the  wife,  316. 

By  and  against  public  agents,  351. 

suit  by  in  United  States  on  note  made  to  agent,  351. 
a  tax  collector,  on  a  note  in  his  own  name  given  for  taxes,  cannot 
sue  in  his  own  name,  351. 
so,  a  land  agent  cannot.  351. 
not  liable  individually  when  executed  in  his  official  capacity,  351. 


622  INDEX. 

Reference  is  to  Sections, 

ACTION— Continued. 

indorsement  of  a  note  thus,  "A.  B.,  Sheriff,"  is  notice  of  his  official  capa- 
city and  is  not  personally  liable,  351. 

when  payee,  158. 

government  of  the  United  States  may  sue  on  bill  payable  to  the  treasurer 
of  the  United  States,  158  n. 

See  Governments. 

By  holder  : 

if  payable  to  bearer,  159,  160,  175. 
60,  of  a  check,  175. 

By  executors  and  administrators : 
when  payees,  158,  440. 
after  revocation  of  letters,  158. 
by  administrator  de  bonis  non,  158,  440. 

By  guardian  when  payee,  158. 

By  and  against  partners,  403,  404. 

may  sue  one  another  on  contracts  not  relating  to  partnership  business, 
403. 

one  partner  may  sue  another  on  his  individual  note,  403. 

not  if  he  is  liable  to  ultimately  contribute  as  a  partner,  403,  404. 

a  firm  can  sue  one  of  its  members,  403,  404. 

when  the  indorsees  and  holders  of  note  are  a  firm  with  one  partner  in 
common,  they  cannot  sue  the  other  indorser,  omitting  the  common  part- 
ner, 403. 

such  omission  may  be  pleaded  in  abatement,  403. 

a  member  of  a  firm  or  agent  of  a  joint  stock  company  on  a  note  after- 
wards transferred,  holder  cannot  sue  the  drawer  of  the  bill,  403. 

a  joint  and  several  note  by  two  makers,  one  being  one  of  the  payees, 
both  payees  may  bring  suit  against  the  other  maker,  403. 

holder  of  scrip  in  joint  stock  company  may  bring  suit  against  the  direct- 
ors on  a  note,  404. 

maker  cannot  plead  their  common  interest  as  a  defense,  404. 

a  joint  note  by  a  firm  to  one  of  its  partners,  no  suit  can  be  brought  on  it 
by  him,  153. 

but  an  assignee  can,  153. 

bo  a  like  note  to  a  firm  with  common  partner  cannot  be  sued  upon  by 
the  payees,  153. 

but  their  assignees  may  sue,  153. 

By  infant : 

an  infant  may  sue  upon  a  note  as  payee  or  holder,  278. 

if  the  holder  is  a  firm,  of  which  one  partner  is  an  infant,  he  must  join 

in  an  action  brought  by  the  firm,  278. 
so  he  must  be  joined  when  the  firm  is  defendant,  278. 
though  the  weight  of  authority  is  against  it,  278. 
a  note  payable  "to  order"  the  bearer  may  sue,  161. 
a  note  payable  to  the  order  of  A.  but  negotiated  to  B.,  161. 
but  if  maker  indorsed  such  a  note  in  the  payee'fr  name  the  holder  could  not  eue 
without  his  indorsement,  161. 


INDEX.  623 

Reference  is  to  Sections. 

ACTION—  Continued. 

joint  action  will  not  lie  against  several  parties  to  corporate  bonds,  12 

summary  proceedings  by  statute  in  foreign  countries,  19. 

in  many  of  the  United  States  by  statute,  a  joint  action  is  given  against  all  prior 

parties,  19. 
does  not  apply  to  sealed  instruments,  70. 
assignee  of  sealed  instrument  may  sue,  70. 
assignee's  right  to  sue  determined  by  what  law,  49,  55. 
limitation  of  action  determined  by  what  law,  54. 
by  payee  for  use  of  stranger  discounting,  223  n. 
against  a  drunkard  before  inquisition,  264. 
on  a  note  payable  one-half  to  each  of  two  persons  a  joint  action  may  be  brought, 

155. 
so  on  a  note  made  to  A.,  B.  and  C,  155. 
a  note  to  "A.  or  B."  which  is  not  properly  a  promissory  note,  an  action  will  lie  for 

the  amount  paid  for  it,  155. 
in  general,  only  the  payee  or  indorsee  designated  in  the  instrument  can  sue.  156". 

Agents: 

by  principal  on  note  to  agent  without  indorsement,  156. 
by  B.  on  note  to  C.  for  B.'s  debt  in  C.'s  name,  156. 
by  principal  on  note  to  "A.  B.,  agent,"  156,  157. 
or  by  the  agent,  156. 
on  a  note  to  "A.  B.,  treasurer,"  156. 
"A.  B.,  president,"  156. 
"A.  B.,  agent  of  C.  D.,"  157. 
"A.  B.,  agent  of  the  E.  Ins.  Co.,"  157. 
"A.  B.,  president  of  the  E.  E.  E.,"  157. 
"G.  W.,  treasurer  of  the  I.  M.  Co.,"  157. 
"A.  B.  for  the  use  of  C.  D.,"  C.  D.  at  common  law  cannot 
sue  in  his  own  name,  157  n. 
payable  to  an  officer  of  a  corporation,  "or  his  successors  in 
office,"  157. 
municipal  corporation  in  the  name  of  the  payee's  official  successor,  157. 
but  such  payee's  official  successor  cannot  bring  suit  on  it  in  his  own 

name,  157  n. 
by  survivors  instead  of  successors,  157. 
by  bank  on  note  to  cashier,  157. 
though  bank  is  not  named  in  the  note,  157. 
by  cashier  in  his  own  name,  157  n. 
for  other  illustrations,  see  157. 
by  the  agent  when  the  principal  is  designated,  156. 
on  a  note  to  "A.  B.,  agent  of  the  P.  H.  Co.,"  156. 

"A.  B.,  treasurer  of  the  E.  and  A.  E.  E,"  156. 

"A.  B.,  superintendent  of  the  Decatur  Agricultural  Works," 

156. 
"A.  B.,  lawful  attorney  for  C.  D.,"  156. 
"A.  B.,  agent  of  the  proprietors  of  the  town  of  C,"  156. 
"A.  B.,  permanent  secretary  of  the  Adelphi  Lodge,"  156. 
a  note  transferred  by  executor  or  administrator  to  distributee  of  the  estate,  the 
transf«"pe  may  maintain  an  action  thereon  in  his  own  name,  441. 


624  INDEX. 

Reference  is  to  Sections 

ACTION—  Continued. 

where  the  same  person  is  both  maker  and  payee  he  cannot  sue  on  it,  153. 

a  note  by  A.  and  B.  to  B.  cannot  be  sued  either  by  B.  or  by  his  personal  repre- 
sentatives, 153  n. 

although  suit  may  be  brought  by  B.'s  indorsees,  153  n. 

if  a  note  be  made  by  A.  and  B.  payable  to  "A.  or  bearer,"  a  subsequent  holder 
or  bearer  may  sue  both  makers,  153  n. 

ADDITIONAL  STIPULATIONS, 

for  interest  does  not  affect  negotiability,  200. 

does  destroy  negotiability  in  Austria,  200. 
ineffectual  in  Germany,  200. 
exchange  does  not  affect  negotiability,  200. 
unless  a  cover  to  evade  the  usury  laws,  200. 
a  request  to  charge  the  same  to  tbe  account  of  the  drawer,  201. 
so  a  statement  that  tbe  drawer  will  credit  tbe  payment  in  a  particular  way,  201. 
in  certificates  of  deposit  payable  on  "return  of  this  certificate,"  201. 
but   if   the    return    included    tbe    maker's    guaranty,   negotiability   would    be 

destroyed,  201. 
"and  this  sball  be  your  warrant  for  so  doing  and  good  as  my  receipt  for  said 

money,"  201  n. 
other  stipulations  wbich  do  not  affect  negotiability,  201. 
"which  I  am  truly  tbankful  for  and  shall  never  be  forgotten  by  me,"  201. 
"me  varietur,"  common  in  Louisiana,  201. 
"in  case  of  need  apply  to  Messrs.  A.  B.,  at  O,"  201. 
"return  without  protest,"  201. 
"as  per  advice,"  201. 

stipulations  limiting  amount  of  exchange  or  expenses  assumed,  201. 
American  statutes  on  this  point,  201  n. 

Recitals  for  collateral  security,  202. 

with  power  of  attorney,  202. 
agreement  to  pay  a  deficiency,  202. 

agreement  for  collaterals  confined  to  original  holders,  202. 
See  Collateral  Security. 

Recitals  relating  to  the  consideration,  203. 

not  a  promissory  note  if  such  recital  is  in  the  nature  of  an  exec- 
utory agreement,  203. 
but  an  executed  agreement  does  not  affect  its  negotiability,  203. 
for  illustrations,  see  203. 
See  Consideration. 

As  to  the  manner  of  payment : 

which  does  not  affect  its  negotiability,  204. 
for  illustrations,  see  204. 

Stipulation  for  attorney's  fees,  205. 
validity  of,  205,  206, 

may  be  recovered  by  subsequent  holder,  205. 
binding  an  acceptor,  205. 
when  proof  of  the  amount  is  necessary,  205. 
when  not  conditional,  205. 


INDEX.  625 

Reference  is  to  Sections. 

ADDITIONAL  STIPULATIONS— Continued. 

in  some  States  such  a  stipulation  is  void  on  grounds  of  public  pol- 
icy, 205. 
in  general  such  stipulations  do  not  affect  negotiability,  205,  206. 
binding  on  tbe  indorser,  205. 
a  stipulation  for  attorney's  fees  and  a  warrant  to  enter  judgment,  207. 
for  attorney's  fees  and  a  waiver  of  all  exemptions,  207. 
See  Attorney's  Fees. 

Warrant  to  confess  judgment,  207. 

how  far  it  affects  negotiability,  207. 
the  law  unsettled  on  this  point,  207. 
stipulation  with  a  waiver  of  appraisement  and  exemption  laws,  207. 
effect  of  a  power  in  a  note  to  issue  execution,  207. 

of  a  warrant  for  judgment  in  Pennsylvania,  207. 

Other  agreements,  208. 

how  far  they  affect  negotiability,  208. 
for  illustrations,  see  208  and  n. 
effect  of  additional  stipulations  provided  by  a  contemporaneous  writing  distinct 
from  the  note  itself,  199,  208. 

ADMINISTKATOR, 

Inability  of  estate,  438. 

cannot  bind  the  estate  by  giving  a  note  or  bill  as,  438. 

a  promise  to  pay  debt,  binding,  if  in  consideration  of  assets  in  iiie  hands, 

438. 
judgment  in  such  case  should  be  against  him  de  bonis  testatoris,  4SS 
not  beyond  the  amount  of  assets  actually  received  by  him,  439. 

Personal  liability,  439. 

on  a  note  or  bill,  439. 
though  for  benefit  of  the  estate,  439. 

a  note  "for  value  received  by  A.  (the  estate)  and  his  heirs"  void  for 
want  of  consideration,  439. 

At  "payee,  440. 

may  sue  on  it  in  his  own  name,  440. 

or  in  his  representative  capacity,  440. 

administrator  de  bonis  non  may  sue,  440. 

a  note  payable  to  the  payee  as,  is  sufficient  notice  of  its  character,  441. 

Transfer  by,  441. 

may  transfer  the  personal  property  of  the  deceased,  441. 

includes  a  power  to  transfer  note  taken  in  payment  of  property  sold, 

441. 
may  transfer  such  note  to  a  distributee  of  the  estate  for  his  share,  441. 
and  on  the  death  of  the  holder  of  a  bill  or  note  the  right  to  transfer 

passes  to  his,  441. 
and  an  indorsement  by  him  is  as  effectual  as  if  made  by  a  deceased 

payee,  441. 
may  indorse  a  note  of  testator  to  complete  transfer  by  testator,  442. 
may  be  compelled  in  equity  to  make  such  indorsement,  442. 


G2G  INDEX. 

Reference  is  to  Sections. 

ADMINISTBATOR— Continued. 
execution  of  note  or  bill  by,  134. 
"A.  B.,  administrator,"  personally  liable,  134,  171  n. 
otherwise  in  Maine,  134. 
added  to  acceptor's  signature,  439. 

does  not  quality  his  liability,  439. 

especially  when  the  estate  is  not  particularly  designated,  439. 
where  several  partners  give  their  joint  and  several  note  at  law  the  administrator 
of  a  deceased  partner  is  liable  upon  it,  426. 

See  Action — Executor— Name. 

ADMISSIONS— See  Evidence. 

ADVICE,  "  as  per  advice"  in  bill  does  not  affect  negotiability,  201. 

AFTEE  SIGHT, 

presentment  for  acceptance  necessary,  16. 
equivalent  to  demand,  109. 

AGENTS, 

General  principles,  352. 

not  necessary  that  agent  should  be  competent  to  contract  in  his  own  right, 
352. 

an  infant  may  be  an,  352. 

a  married  woman,  352. 

an  alien,  352. 

a  slave,  352. 
must  have  sufficient  intelligence  to  know  what  he  is  about,  352. 
an  idiot  cannot  be,  352. 

or  an  insane  person,  352. 

Appointment  of: 

may  be  by  parol.  :'>•">:',. 

of  a  corporation,  353. 
not  sufficient  for  making  of  a  sealed  note,  353. 
liable  for  the  consideration,  353. 
indorsement  by  an,  353. 
authority  by  joint  principals,  354. 
extends  to  joint  paper  only,  354. 

but  one  partner  may  authorize  a  clerk  to  accept  or  indorse  notes  in  firm's 
name,  354. 

Signature  by  agent,  146. 

proper  mode  "A.  B.,  by  C.  D.,  agent,"  146. 
though  authority  of  agent  need  not  appear,  146. 
foreign  statutes  on  the  execution  of  notes  and  bills,  146  n. 
American  statutes,  352. 

Husband  and  wife : 

wife  as  agent  for  husband,  31S. 

holder  must  prove  authority,  31S. 

husband  not  liable  when  he  has  prohibited  his  signature  being  made,  318. 

so  of  a  husband's  liability  on  wife's  indorsement,  318. 

authority  may  he  implied,  31s. 


INDEX.  627 

Reference  is  to  Sections. 

AGENTS— Continued. 

such  authority  is  a  question  for  the  jury,  318. 

accommodation  notes  not  included  in  a  general  power  of  attorney  to 
husband,  318. 

general  power  of  attorney,  what  includes,  318. 

husband  hound  by  a  subsequent  ratification,  31S. 
principal's  name  should  appear,  131. 
though  given  in  principal's  business,  131. 
though  known  by  other  party  to  be  acting  as  agent,  131  n. 
otherwise,  agent  is  individually  liable,  131. 
hut  a  liill   drawn  on   the  principal   and  accepted  by  the  agent  in  his  own  name 

binds  the  principal,  131  n. 
authority  given  to  agent  does  not  discharge  him  from  individual  liability,  131. 
though  ratified  subsequently  by  principal,  131. 
even  though  principal  may  have  been  disclosed,  131. 

though  a  direction  lie  added  to  charge  to  the  account  of  the  principal,  131. 
subsequent  ratification  renders  principal  liable,  131  n. 
liability  of  agent  to  principal,  131  n. 
when  given  in  principal's  business  principal  liable  lor  the  original  consideration, 

131. 
.unless  discharged  by  art  of  the  payee,  131. 

Execution  bij,  131  et  xeq. 

Execution  by  public  officers,  132. 

public  officers  not  individually  liable,  132,  351. 

official  designation  is  not  necessary,  132. 

credit  is  presumed  to  have  been  given  to  the  government  he  represents, 

132. 
enumeration  of  public  officers  not  liable,  132. 
may  become  liable  by  acts  of  fraud,  132. 
See  Governments. 

■Official  additions  to  agentfs  signature,  13.'!. 

"Agent"  added  to  signature,  133. 

his  liability  not  affected  by  having  ceased  to  be  agent  before  the  matur- 
ing of  tin'  note,  133. 

or  by  the  fact  that  no  demand  was  made  of  the  principal  when  dis- 
closed, 133. 

signing  "A.  B,  agent,"  and  disclosing  principal,  133. 

agent  added  to  signature  and  giving  note  in  principal's  business,  13.".. 

parol  evidence  admissible  to  show  principal.   133. 

"President,"  "Secretary."  "Treasurer."  "Trustee,"  "Supervisors,"  &C , 
added,  133. 

note  payable  to  "  II.  B.,  Treasurer."  and  indorsed  in  like  manner  to  one 
who  received  it  for  a  debt  of  the  corporation,  K.  B.  not  individually 
liable,  133. 

cutting  off  the  words  "president"  and  "secretary"  is  not  a  material 
alteration,  133. 

"cashier"  added,  such  paper  belongs  to  the  hank,  133. 

indorsement  "A.  B.,  cashier,"  renders  the  bank  liable,  133. 

•such  is  the  proper  form  lor  an  indorsement  or  acceptance  for  a  bank,  133 


G28  INDEX. 

Reference  is  to  Sections. 

AGENTS— Continued. 

Execution  by : 

"  Executor,"  "Administrator,"  "  Guardian,"  as,  134. 
See  Administrator — Executor — Guardian. 

Execution  by  corporation,  135. 

in  corporate  name,  135. 

principal  named  in  instrument,  135. 

though  not  signed  by  principal  named,  135. 

for  illustrations,  see  135. 
when  it  is  signed  in  the  principal's  name,  135. 

for  illustrations,  see  135. 
liability  of  unauthorized  agent,  135. 

of  agent  for  false  warranty,  deceit,  &c,  135. 
agent  accepting'  bill  without  authority,  135. 
principal  named  in  agent's  official  title,  136,  137. 
as  agent,  136  n. 
principal  indicated  by  corporate  seal,  138. 

by  being  dated  at  company's  office,   or   papti 
marked  with  company's  name,  138,  140. 
principal  indicated  by  words  such  as  "in  behalf  of,"  139. 

"on  account  of,"  139. 
"for  the  use  of,"  139. 
"by  order  of,"  or  "by  author- 
ity of,"  &c,  139. 
principal  indicated  by  charging  to  his  account,  or  "charged  as  ordered,"  140. 
by  recitals  of  consideration  moving  to  the  principal,  141. 
when  estopped  from  denying  agent's  acts,  141. 
benefit  to  principal  is  not  sufficient  of  itself  to  control  the  character  of  the  bill 

or  note,  141. 
the  recital  of  consideration  is  not  conclusive,  141. 
parol  evidence  is  admissible  to  disclose  principal,  140,  147. 
but  not  for  the  purpose  of  discharging  an  agent,  147. 

Intention  shown  by  form  of  promise,  142. 
"  I  promise,"  "we  promise,"  &c,  142. 
"we,  or  either  of  us,"  "jointly  and  severally,"  143. 
"for  ourselves  and  our  successors,"  143  n.,  144. 

principal  indicated  by  "gent's  promise  "  as  agent,"  "  as  commissioners,"  144. 
in  official  capacity,  144  n. 
principal  indicated  as  acceptor  or  indorser  by  drawee's  or  payee's  name, 

145. 
bill  drawn  on  and  accepted  by  agent,  145. 

Joinder  of  agents,  355. 

power  conferred  on  several  jointly  must  be  executed  by  all,  365. 
authority  to  four  is  not  executed  by  three,  355. 

one  of  several  official  liquidators  cannot  by  his  single  acceptance  bind, 
the  company  or  his  co-liquidators,  355. 
an  agent  cannot  delegate  his  authority,  355. 

may  delegate  the  act  of  signing  in  his  presence,  355. 
for  illustrations,  see  355. 


INDEX.  629 

Reference  is  to  Sections. 

AGENTS— Continued. 

By  express  authority,  356. 

agents'  authority  limited,  356. 

principal  not  bound  beyond,  356. 

to  original  parties,  356. 

or  parties  with  notice,  356. 
is  strictly  construed,  357. 

"and  all  other  acts"  will  not  include  power  to  make  a  bill,  357. 
nor  will  a  power  to  accept  or  indorse  notes  be  included  in  'a  general 

power  to  transact  business,  and' receive  and  pay  debts,  357. 
or  to  regulate  and  take  account  of  earnings,  357. 
or  distribute  expenses,  357. 
or  regulate  the  running  of  boats,  357. 
or  maintain  offices,  &c,  357. 

to  transact  all  business  in  a  county  will  authorize  the  transfer  of  a  note, 
357. 

"full  power  and  control  of  all  its  business,"  authority  by  directors,  357. 

to  stand  to  whatever  his  agent  made,  357. 

"to  become  responsible  for  all  contracts  made  by  him  for  machinery, 

&c.,  for  the  use  of  his  factory,"  357. 
"  to  manage,  loan,  control  and  collect,"  357. 
"to  sign  my  name  where  expedient  in  the  transaction  and  conduct  of 

such  business  as  to  my  attorney  shall  seem  meet,"  357. 
a  power  "to  use  and  sign  my  name"  will  not  include  the  execution  of 

a  non-negotiable  note  with  attorney's  fees,  357. 
power  to  act  in  partition  matter  authorizes  the  execution  of  a  note,  357. 
not  liable  on  note  given  for  taxes,  357. 
"as  my  agent  to  make  drafts  on  me,"  357. 
Implication  from  other  express  powers,  358. 

authority  to  accept  not  implied  from  authority  to  pay,  358. 

nor  a  power  to  collect  rents  include  a  power  to  indorse  a  check,  358. 

nor  to  give  a  note  to  counsel  in  making  such  collection,  358. 

a  power  to  collect  a  bill  does  not  include  a  power  to  sell  it,  358. 

authority  to  sell  does  not  include  an  authority  to  guaranty  it,  358. 

power  to  sell  cotton  includes  a  power  to  warrant  it,  358. 

to  purchase  goods,  not  to  give  note  or  bill  for  them,  358. 

or  accept  a  bill,  358. 
authority  to  sell  "  for  cash  "   cannot  take  a  bill  or  note,  358. 
to  sell  goods  cannot  indorse  a  note  received  for  them,  358. 
to  receive  money  from  a  tbird  person  by  drawing  upon  him  does  not 
authorize  the  agent  to  draw  a  bill  payable  to  his  own  order  on  such 
third  person,  358. 

Construction  of  express  powers,  359. 
for  illustrations,  see  359. 
if  authorized  to  make  a  note  payable  at  a  particular  bank  he  cann  >t 

give  a  note  payable  in  any  other  way,  359. 
if  authorized  to  give  a  note  payable  in  six  months  he  cannot  give  a  not* 

payable  sooner,  359. 


f>30  INDEX. 

Reference  is  to  Sections. 

AGENTS— Continued. 

if  to  draw  a  bill  at  four  months  he  cannot  make  it  payable  sooner  by 

ante-dating  it,  359. 
but  to  renew  a  note  in  sixty  or  ninety  days  will  cover  the  indorsement 
of  a  note  payable  in  eighty-eight  days,  359. 
for  other  illustrations,  see  360. 
power  to  give  a  check  will  not  include  a  bill,  360. 
or  a  post-dated  check,  360. 
a  general  power  does  not  include  accommodation  paper,  361. 
if  done  with  principal's  assent,  361. 
for  illustrations,  see  361. 

Authority  need  not  be  express,  362. 

authority  implied  from  declarations  and  conduct,  362. 
corporation  may  be  h  mnd  by,  362. 
English  statute,  362. 
may  be  shown  by  letter  from  principal,  362. 

other  similar  acts  of  agent  are  admissible  to  show  authority,  362. 
in  Louisiana  an  express  power  is  necessary,  362. 

acts  and  declarations  of  the  agent  alone  are  insufficient  to  show  author- 
ity, 362. 
sufficient  if  not  disavowed  by  principal,  362. 
if  given  by  agent  in  principal's  business,  362. 
may  be  inferred  from  custom  of  principal,  362. 

question  for  the  jury,  362. 
if  by  parol,  may  be  shown  by  the  testimony  of  the  agent,  362. 
where  the  consideration  has  gone  to  company's  use  and  authority  is  ex- 
press, 362. 

Authority  implied  from  recognition  of  similar  acts  by  the  principal,  363. 
must  be  in  the  particular  case  or  similar  cases,  363. 
when  agent  managed  principal's  store  and  had  sold  a  bill  and  re- 
newed a  note  in  his  name,  363. 
payment  of  previous  acceptances  is  presumptive  evidence  of  agent's  au- 
thority, 363. 
payment  by  the  father  of  previous  indorsements  by  son  without  any  dis- 
claimer until  after  son  had  absconded,  363. 
question  lor  the  jury,  363. 
cannot  be  implied  from  son's  authority  to  sell  a  note  belonging  to  father, 

363. 
but  if  father  had  previously  paid  note  forged  in  his  name  by  the  son, 
363. 

is  admissible  in  evidence,  363. 
so,  paying  forged  acceptances,  363. 
not  in  Maryland  or  Louisiana,  363. 

to  imply  such  authority  from  previous  recognition  of  similar  acts 
the  bill  or  note  must  have  been  taken  on  the  strength  of  such 
previous  recognition,  363. 
may  be  inferred  from  passive  conduct  in  allowing  agent  to  indorse 
notes  and  procure  discounts,  363. 


INDEX.  631 

Reference  is  to  Sections. 


AGENTS— Continued. 


The  implication  must  be  necessary,  3G4. 

cannot  be  implied  merely  from  a  power  to  purchase  goods,  364. 

nor  from  an  acceptance  of  a  draft  with  the  drawer's  name  blank, 
364. 
may  be  implied  from  principal  having  full  knowledge  of  the  trans- 
action, 3(>4. 
authority  to  receive  payment  may  be  implied  from  its  possession,  364. 
but  authority  to  transfer  cannot  be  implied  from  the  agent's  possession 

of  the  note,  364. 
authority  to  receive  payment  cannot  be  inferred  from  possession  of  an 

unindorsed  note,  3G4. 
may  be  inferred  from  having  received  a  partial  payment  of  note,  prin- 
cipal knowing  of  the  payment,  3(14. 
may  be  inferred  from  authority  to  employ  servants,  ob'4. 

Authority  implied  from  relation  of  the  parties,  365. 

cashier  may  bind  bank  by  certificate  of  deposit,  305. 

authority  may  be  shown  from  the  custom  of  banks,  365. 

partners  may  bind  their  firm,  though  does  not  extend  to  executing  paper 

for  one  another,  365. 
powertodraw  a  bill  is  admissible  as  evidence  to  infer  power  to  indorse,  365. 

Authority  implied  from  official  employment,  366. 
a  general  agent  has  authority,  366. 
so  has  a  factor,  366. 
had  such  power  at  common  law,  366. 
statute  6  Geo.  IV.  gives  the  factor   power  to  pledge    his    principal's 

goods,  366. 
a  firm's  general  cashier  and  financial  agent  has  power  to  give  checks 

and  indorsements,  366. 
corporation  bound  by  an  acceptance  of  its  general  agent,  366. 
so,  when  the  principal's  business  is  managed  by  an  agent  who  is  the 

ostensible  principal,  366. 
though  expressly  forbidden  in  his  instructions,  366. 
a  managing  agent  of  a  firm  has  not,  366. 
nor  the  manager  of  a  store,  366. 
nor  the  master  of  a  vessel,  366. 
may  in  case  of  sudden  and  unforeseen  necessity,  366  n. 
nor  the  supercargo  of  a  vessel,  366. 
nor  a  merchant's  clerk,  366. 

nor  a  clerk  acting  outside  of  his  regular  employment,  366. 
bind  his  principal  by  a  1 » i  1 1  of  lading,  366. 
may  depend   upon  the  fact   whether  such  paper  has  been  for  goods  or 
other  things  necessary    to  the    transaction   of   the   principal's   busi- 
nees,  366. 

an  auctioneer's  clerk  lias  not,  366. 
nor  the  clerk  of  a  steamboat,  366. 
nor  the  purchasing  agent  of  a  carriage  factory,  366. 
nor  an  attorney-at-law  receiving  a  note  for  collection  has  no  author- 
ity to  transfer  it,  366. 
nor  collecting  agents,  366. 


632 


INDEX. 


Reference  is  to  Sections. 


AGENTS—  Continued. 


Corporate  authority  implied,  307. 

authority  from  a  corporation  may  be  implied  as  from  an  individual,  3(57. 

if  charter  describes  a  particular  way  in  which  authority  to  act  for  it 
must  be  conferred,  that  way  must  be  followed,  367. 

a  statutory  requirement  of  executing  notes  and  bills  issued  by  a  bank 
for  circulation  as  money,  does  not  apply  to  certificates  of  deposit,  367. 

rector  and  wardens  cannot  when  charter  directs  that  it  shall  be  done  by 
the  rector,  wardens  and  vestry,  367  n. 

when  charter  of  bank  requires  bills  to  be  signed  by  president  and  cashier, 
signing  by  vice-president  and  assistant  cashier  is  not,  367  n. 

when  money  borrowed  by  an  officer  of  a  corporation  upon  notes  belong- 
ing to  it  and  applied  to  its  use,  with  knowledge  of  the  trustees,  binds 
it,  though  statute  required  a  vote  of  the  trustees,  367. 

by-laws  of  a  company  requiring  indorsements  to  be  made  by  the  secre- 
tary, an  indorsement  by  the  president  is  not,  367. 

a  maker  of  a  note  cannot  object  to  the  informal  manner  of  the  transfer 
where  the  statute  is  designed  for  the  protection  of  the  corporation 
and  its  creditors,  367. 

the  best  evidence  of  authority  is  in  its  own  minutes,  367. 
though  not  the  only  evidence,  367. 

evidence  that  agent  has  been  acting  as  cashier,  and  that  his  acts  have 
been  recognized  by  resolution  of  the  directors,  is  sufficient,  367. 

where  one  acts  and  is  held  out  as  an  officer  of  a  corporation,  it  will  be 
presumed  that  he  has  been  elected  and  qualified,  367. 

though  his  election  has  been  irregular  the  company  will  be  bound  by 
his  acts  as  agent,  367. 

Corporation  officers,  368. 

acts  of,  bind  the  corporation  within  their  official  scope,  368. 

not  necessary  that  agent's  acts  be  performed  at  the  company's  office,  368  n. 

an  indorsement  by,  is  prima  facie  the  act  of  the  corporation,  368. 

an  officer  having  no  connection  with  the  business  of  the  corporation  has  no 

authority  to  give  a  bill  or  note,  368. 
the  president  has  no  implied  authority  to  bind  the  corporation  by  contract, 

368. 
directors  of  a  banking  company  may  authorize  an  agent  by  power  of  attorney 

to  transfer  a  note  belonging  to  the  company,  368. 
so  they  may  authorize  the  president  and  cashier  to  borrow  money  and  give 

drafts  in  the  company's  name,  368. 
members  of  a  Masonic  Lodge  may  authorize  their  presiding  officer  to  bind 
it  by  note,  368. 
bo  an  acceptance  by  president  of  a  bank  who  is  the  general  agent  and  manager 

with  approval  of  directors  will  bind  the  bank,  368. 
presidents  of  incorporated  companies  by  virtue  of  their  office  may  indorse  and 
transfer  negotiable  paper  belonging  to  the  company,  368. 
so  a  cashier,  368. 

a  president  may  bind  the  company  by  indorsement,  368. 
not  by  an  accommodation  indorsement,  368  n. 
may  transfer  such  paper  without  express  authority,  368. 


INDEX.  633 

Reference  is  to  Sections. 

AGENTS—  Continued. 

the  maker  cannot  question  the  payee's  capacity  to  transfer  it,  368  n. 
such  authority  may  be  presumed  from  the  paper  itself,  368. 

so  when  made  payable  to  the  president  as  such,  368. 
the  indorsement  by  the  ex-president  sufficient  when  proceeds  have  gone  to  the 

company,  368. 

so  wben   the  indorsement  has   been  expressly  authorized  by  a  vote  of  the 
board  of  directors,  368. 
the  president  has  no  power  to  surrender  rights  or  assets  of  the  company  without 

express  authority,  369. 
cannot  bind  the  company  by  an  agreement  to  give  up  a  note  in  consideration  of 

bank  stock  sold  by  the  maker,  369. 
cannot  give  to  the  maker  of  a  note  a  receipt  showing  it  to  be  a  mere  voucher  or 

memorandum,  369. 
the  cashier  of  a  bank  may  transfer  or  accept  negotiable  paper  for  it,  369. 
the  president  may,  by  usage,  in  the  absence  of  the  cashier.  369. 
president  may  certify  a  check,  369. 

though  not  one  drawn  individually  by  himself,  369. 
president  and  cashier  cannot  transfer  its  assets  to  creditors  as  security  for  debta 

when  its  management  is  expressly  lodged  by  its  charter  in  a  board  of  directors, 

369. 
the  president  of  a  manufacturing  corporation  has  no  authority  to  commence  an 

action  in  the  name  of  the  company,  369. 
and  when  a  solicitor  retained  by  him  has  acted  in  the  company's  name  so  as  to 

bind  it,  the  president  will  be  liable  in  damages,  369. 

directors  liable  for  the  attorney's  fees  under  such  a  retainer,  369. 
the  president  as  a  member  of  the  finance  committee,  with  the  cashier  employed 

a  solicitor,  is  evidence  of  authority  from  the  corporation,  369. 
not  liable  for  the  services  of  a  co-defendant  solicitor,  369. 
president  has  no  authority  to  stay  the  collection  of  an  execution  against  one  of 

its  creditors,  369. 
the  president  of  an  insurance  company  has  no  right  to  surrender  notes  received 

for  advanced  premiums,  369. 
president  cannot  agree  with  an  indorser  of  paper  held  by  the  bank  that  he  shall 

not  be  liable  on  his  indorsement,  369. 
cannot  settle  and  release  claims  of  the  company  against  his  official  predecessor 

without  authority,  369. 
note  made  by  a  bank  to  its  president  and  indorsed  to  another  bank  having  the 

same  president,  he  has  no  authority  to  bind  the  first  bank  by  agreement  that 

note  shall  be  paid  out  of  its  funds,  369. 

Cashier,  370. 

See  Cashier — President — Secretary — Teller — Treasurer. 

Municipal  officers,  372. 

Authority  implied  from  blanks,  373. 

the  holder  is  the  agent  of  the  maker  to  fill,  373. 
blank  note  by  agent  in  principal's  name,  373. 
revoked  by  death  of  the  principal.  373. 


634  INDEX. 

Reference  is  to  Sections. 

AGENTS— Continued. 

Ratification,  374. 

subsequent  ratification  by  principal  equivalent  to  original  authority,  374. 
applied  to  the  indorsement  of  a  receipt  for  the  payment  of  interest  so  as 
to  take  liability  of  an  accommodation  indorse!'  out  of  the  statute  of 
limitations,  374. 
must  be  made  with  full  knowledge,  374. 
relates  back  to  time  paper  was  executed,  374. 
requires  no  new  consideration,  374. 
so,  a  forged  signature  may  be,  374  n. 
selling  goods  after  expiration  of  agency,  receiving  note  by  the  principal 
is  a,  374. 

unauthorized  acts  of  a  corporation  may  be,  374. 
an  act  ultra  vires  cannot  be,  374. 
acts  of  directors  may  be,  374. 

when  principal's  power  has  expired  he  cannot  ratify  previous  unauthor- 
ized acts  of  agent,  374. 
payment  of  one  bill  does  not  imply  the  ratification  of  a  second,  374. 
principal's  ratification  does  not  relieve  personal  liability  of  agent,  374. 
cannot  ratify  the  forgery  of  principal's  name,  374. 

Ratification,  what  acts  amount  to,  375. 

draft  used  for  the  benefit  of  the  company,  375. 

retention  and  use  of  a  draft  from  agent  of  old  firm.  375. 

cashier  executing  notes  with  knowledge  of  the  directors,  375. 

sale  of  note  by  collecting  agent  and  giving  principal  his  own  note  for 

the  proceeds,  375. 
principal  as  maker,  part  payment  on,  is  prima  facie  evidence  of   his 

authority  for  its  execution,  375. 
so,  of  a  sealed  note  executed  under  a  verbal  authority,  375. 
principal  in  letter  speaking  of  note  as  his  and  promising  to  pay  it,  375. 
goods  purchased  by  son,  father  afterwards  saying  it  was  all  right,  375. 
principal  receiving  and  retaining  proceeds  of  a  note  made  in  his  name 

until  note  is  protested,  375. 
agent  giving  note  in  company's  name,  company  by  taking  possession  of 

property,  is  a,  375. 
principal  accepting  a  note  by  unauthorized  agent,  with  knowledge  of  all 

the  circumstances,  is,  375. 
committee  of  a  common  council  without  authority  causing  architects' 

plans  and  drawings  to  be  prepared,  a  subsequent  resolution  adopting 

the  same  is  a,  375. 
one  part  owner  of  a  vessel  insuring  for  all,  375. 
bringing  an  action  on  the  policy  is  a,  375. 

Ratification,  by  acquiescence,  376. 

by  silence  of  the  principal,  376. 

receiving  the  proceeds  of  a  note  accepted  and  indorsed  by  agent,  376. 
two  years'  silence  by  bank  officers  that  check  had  been  given  in  its- 
name  by  cashier,  is,  376. 
renewing  a  note  previously  given  without  authority,  376. 


INDEX.  635 

Reference  is  to  Sections. 

AGENTS— Continued. 

agents  receiving  money  on  note,  principal's  silence  for  nearly    three 

years,  authority  implied  to  receive  other  payments,  376. 
principal  indorsing  a  check  in  blank  and  agent  subsequently  tilling  it 

up  as  a  bill,  376. 
directors  of  bank  returning  bank  notes  which  had  been  stolen  after  being 

signed  by  the  cashier  and  president's  name  forged,  is  not,  376. 

Termination  of,  377. 

authority  of  continues  until  revoked  and  notice  given  of  the  fact,  377. 

revoked  without  giving  notice,  effect  of,  377. 

authority  of  servant  ends  only  when  the  determination  of  the  relation  to- 
which  it  was  incident  has  been  generally  made  known,  377. 

a  special  agency  ends  with  the  limitatian  for  which  it  was  given,  377. 

where  charter  of  bank  expires  at  a  fixed  time  liability  of  bondsmen  for 
cashier  ends  with  the  expiration  of  that  time,  377. 

an  indorsement  of  a  note  for  collection  is  a  power  of  attorney  to  collect, 
and  is  revoked  by  a  subsequent  transfer  of  the  note  by  the  principal, 
377. 

death  terminates,  377. 

transfer  of  a  note  may  be  perfected  by  delivery  by  agent  after  princi- 
pal's death,  377. 
by  the  outbreak  of  war,  377. 

Notice  of  limit  of  agent's  authority,  388. 
See  Defenses. 

Individual  liability  of,  378. 

if  he  make  a  contract  without  authority,  378. 

not  if  with  authority  he  makes  a  contract  for  a  corporation  whicli  is 
ultra  vires,  378. 

if  he  exceeds  his  authority,  378. 
liable  for  the  whole  amount  due,  378. 
accepting  a  bill  without,  liable  to  the  original  payee  or  holder,  378. 

also  to  subsequent  indorsees,  378. 
his  want  of  authority  must  affirmatively  appear,  378. 
liability  not  confined  to  the  instrument,  379. 
executor  of  a  sealed  note  without  authority  not  liable  on  the  note,  l>ut 

in  a  separate  action,  379. 
directors  of  a  corporation  not  a  majority  required  by  charter,  379. 
borrowing  money  on  memorandum  of  deposit,  379. 

Individual  liability — how  avoided,  380. 
if  he  is  known  to  be  such,  380. 

master  of  a  vessel  drawing  bill  for  supplies  for  the  vessel,  380. 
although  if    he    contracts   personally   he   is   liable   though    agency  be 

known  and  principal  disclosed,  380. 
merely  describing  as  agent  will  not  relieve,  380. 

especially  when  all  the  agents  do  not  join  in  signing  the  paper, 
380  n." 
should  expressly  sign  principal's  name,  380. 
or  state  his  ministerial  capacity,  380. 


636 


INDEX. 


Reference  is  to  Sections. 

AG  ENTS— Continued. 

may  become  individually  liable  on  bill  executed  without  authority  in 
principal's  name,  380. 
on  proof  of  agent's  want  of  good  faith,  380  n. 

bill  accepted  by  agent  of  a  joint  stock  company  as  "  per  procura- 
tion" without  authority,  380  n. 
when  agent  without  authority  gave  a  note  in  the  name  of  a  firm 
after  dissolution,  3S0  n. 
so,  on  the  theory  that  agent  had  used  an  assumed  name,  380. 
signing  a  note  without  authority,  as  "A.  B.,  attorney  for  C.  D.,"  person- 
ally liable,  380. 
rule  not  to  be  extended  beyond  cases  where  the  agent  uses  apt  words  to 

charge  himself,  380. 
agent  procuring  a  policy  of  insurance,  "A.  for  B.,  to  be  insured  in  ship 

G.,"  380. 
authorized  to  borrow  money  and  draw  bills,  giving  instead  a  bond  under 

seal,  380. 
signing  principal's  name,  adopting  and  using  it  at  the  time  as  his  own 
380. 
but  giving  note  in  principal's  name,  signing  it  as  agent,  not  personally  liable, 

380. 
signing  name  of  another  as  acceptor  of  a  bill  without  fraudulent  intent,  individu- 
ally liable,  380. 

to  subsequent  indorsees  of  bill,  380. 
trustees  giving  a  note  without  authority,  describing  themselves  as  such,  380. 
giving  a  note  or  bill  in  principal's  name,  liable  only  for  such  damages  as  may  !>*: 

proved,  380. 
not  liable  for  a  failure  of  authority  due  to  death  of  principal  without  his  knowl- 
edge, 380. 

nor  are  the  representatives  of  the  deceased  principal  liable,  380  n. 

Public  officers  not  liable,  381. 
See  Public  Officers. 

Liability  of  agent  to  principal,  382. 

Drawer  agent  of  drawee,  382. 

agent  draws  on  principal  by  his  authority,  principal  not  liable  as  drawer,  382. 
not  necessary  that  the  agency  of  the  drawer  should  be  expressed  on  the  face 
of  the  bill,  382. 

if  drawn  in  fact  for  debt  of  principal,  382. 
where  the  drawer  is  agent  of  drawee,  in  England  liable  both  to  the  payee  and  sub- 
sequent parties,  382. 

though  known  by  them  to  be  acting  as  agent  merely,  382. 
in  the  United  States  a  different  rule  has  been  adopted,  382. 
an  agent  who  draws  a  bill  on  his  principal  for  goods  sold,  disclosing  the  primi 

pal,  is  not  liable  to  a  payee  who  has  knowledge  of  the  agency,  382. 
if  draws  bill  on  his  principal  in  individual  name  he  will  be  liable  as  drawer  to 

the  payee  and  subsequent  parties,  3S2. 
even  though  bill  is  drawn  expressly  chargeable  to  principal's  account,  382. 
and  though  payee  knew  of  the  agency,  382. 


INDEX.  637 

Reference  is  to  Sections. 


AGENTS— Continued. 


Drawer  or  maker  agent  of  payee,  383. 
where  the  drawer  is  payee's  agent  the  agent  is  individually  l.able  to  payee  in 
England,  383. 

otherwise  in  the  United  States,  383. 
maker  of  a  note  as  agent  of  payee  uses  a  fictitious  name  for  the  purpose  of  rais- 
ing money  for  payee,  not  individually  liable,  383. 
even  to  a  bona  fide  holder,  383. 

Indorses  agent  of  indorsee,  384. 
when  agent  acts  as  indorser  in  transferring  it  to  his  principal  he  is  individually 
liable  in  England  as  indorser,  384. 
unless  he  restricts  his  liability,  384. 

not  liable  if  made  merely  for  remittance  and  by  principal's  order,  384. 
in >t  liable  for  its  loss  when  being  transmitted  by  mail,  384. 
purchasing  a  draft  by  direction  of  principal  and  remitting  by  indorsement,  not 

liable,  384. 
but  if  directed  to  make  remittance  on  "good  house,"  and  house  proves  otherwise, 

he  will  be  liable  to  the  principal,  384. 
agent's  liability  as  a  guarantor  to  his  principal,  consideration  is  necessary,  384. 

as  well  as  an  express  undertaking  on  agent's  part,  384. 
liable  on  a  del  credere  commission,  384. 
and  liable  for  a  loss  on  bill  remitted  to  member  of  firm  who  had  made  advances 

in  repayment  of  such  advances  and  dishonored  while  in  his  hands,  384. 
not  liable  to  his  principal  for  accommodation  merely,  384. 

Liability  of— for  negligence  or  fraud,  385. 

to  obtain  discount  misapplies  the  proceeds,  liable  to  his  principal  for  dam- 
ages, 385. 
may  sue  him  for  money  had  and  received,  385. 
cannot  bring  trover  for  a  bill  which  has  been  misapplied,  385. 
if  municipal  officer  has  obtained  money  on  a  note  issued  by  him  without 
authority  in  name  of  town,  a  recovery  of  the  money  received  may  be  had 
against  him  by  the  town,  385. 
the  illegality  of  note  will  be  no  defense,  385. 
profits  belong  to  the  principal,  385. 
parties  whose  interests  are  adverse  cannot  be,  385. 
holder  of  note  cannot  be  maker's  agent  to  take  out  of  the  Statute  of  Limitations, 

385. 
corporation  cannot  give  a  valid  note  to  its  acting  trustee,  385. 
the  payee  of  note  may  act  as  agent  for  the  maker  in  signing  it  in  his  presence, 

385  n. 
a  municipal  corporation  may  take  and  sue  upon  a  note  made  by  a  defaulting  city 

treasurer  for  money  taken  by  him,  385. 
delivery  to,  222,  223. 
between  alien  enemies,  251. 
how  far  remains  unrevoked  by  war,  251. 
what  agencies  remain  in  force  during  a  war,  251. 
as  payee,  156,  157. 
a  promissory  note  to  "A.  B.,  agent,"  156,  157. 


638  INDEX. 

Reference  is  to  Sections. 

AGENTS— Continued. 

See    Acceptance — Action — Bona    Fide    Holder — Defenses  — Estop- 
pel— Evidence. 

AGENT  FOR  COLLECTION, 

bank  not,  when  named  as  place  for  payment,  125. 

ALIENS  AND  ALIEN  ENEMIES, 

defined,  248. 

a  naturalized  citizen  may  be,  248. 

a  note  made  by  a  British  subject  to  a  citizen  of  a  neutral  State  residing  in  an 

enemy's  country  may  be  sued  upon  in  the  English  courts,  248. 
foreign  corporations  may  be,  24S. 

the  place  where  one  is  found  characterizes  him  as  enemy  or  neutral,  248. 
principles  applied  to  American  civil  war,  249. 

citizens  of  seceded  States  were  not,  before  the  secession  of  their  States,  249. 
a  note  is  not  presumed  to  have  been  made  between,  because  secured  by  a  mortgage 

dated  six  months  later  when  the  parties  resided  in  belligerent  sections.  249. 
who  are,  within  Statute  of  Limitations,  249. 
all  contracts  between,  are  void,  250. 
existing  and  continuing  contracts  are  suspended,  250. 
such  as  insurance,  250. 

agency,  251. 
the  revival  of  such  contracts  is  based  on  the  grounds  of  equity  and  justice,  250  a. 
it  does  not  extend  to  the  right  to  make  new  purchases,  251. 
proceedings  against  debtors  of  alien  enemies,  251. 
power  of  attorney  for  the  sale  of  land  is  revoked  by  war,  251. 
payment  of  a  debt  may  be  made  to  a  friendly  agent  of,  251. 
delivery  of  goods  after  the  war,  may  be  made  to,  251. 
agency  cannot  be  created  after  the  outbreak  of  war,  251. 

Partners  and  partnership : 

partnership  is  dissolved  by  war,  251. 

their  contracts  are  not  binding  on  the  firm,  251. 

an  alien  enemy  partner  cannot  indorse  a  note  belonging  to  the  firm,  251. 

partners  as  makers  of  a  note  are  liable  individually  on  the  note  after 

they  become,  251. 
so,  a  partner  is  bound  by  the  acceptance  of  his  alien  enemy  partner's 

acceptance,  251. 

What  contracts  between,  are  valid,  252. 

by  a  prisonei--of-\var  for  necessaries,  252. 

a  note  for  a  license  to  protect  a  ship  against  capture,  252. 

such  license  does  not  render  void  the  ship's  policy  of  insurance,  252. 

valid  contracts  between,  may  be  permitted  by  special  license  of  the  gov- 
ernment, 252. 

such  license  must  be  proved  by  the  one  alleging  it,  252. 

contracts  between,  applies  to  commercial  paper,  253. 

a  bill  for  the  ransom  of  a  captured  ship  is  valid,  253. 

so,  for  repairs  of  ship  made  under  a  cartel,  253. 

a  bill  drawn  by  a  British  prisoner  in  France  upon  a  British  subject  and 
made  payable  to  an  alien  enemy,  is  void  in  England  by  statute,  253. 


INDEX.  63TJ 

Reference  is  to  Sections. 

ALIENS  AND  ALIEN  ENEMIES— Continued. 

drawee  an  alien  enemy,  '254. 

bill  drawn  on  alien  enemy   valid   in  the  hands  of  a  bona  fide  holder, 
•254. 

so,  if  transferred  to  the  United  States  government,  254. 

bona  fide  holder  may  recover  payments  made  on  it  by  him,  254. 
payee  or  indorsee  an  alien  enemy,  255. 
indorsement  between,  255. 

delivering  to  citizen  under  indorsement  by  alien  enemy,  255. 
transfer  by  the  maker  an  alien  enemy,  255. 
suit  upon  an  indorsement  made  between,  255. 
a  subsequent  promise  to  pay  is  valid,  255. 

though  payment  of  such  note  during  war  is  prohibited  by  statute,  255. 
a  note  may  be  given  after  the  war  for  debt  created  during  the  war.  255. 
a  payment  to  an  a!ien  enemy  cannot  be  questioned  by  himself,  255. 

ALLONGE, 

what  is  an,  13. 

ALLOW, 

"  I  allow  to  give,"  not  equivalent  to  a  promise,  87. 

ALTEKATION, 

By  supplying  omissions,  182. 
"with  interest  at,"  182. 
place  of  payment,  182. 
"  first,"  "  second,"  &c,  182  n. 
"after  maturity,"  1S2  n. 

"bearing  ten  per  cent,  interest  after  maturity,"  182  n. 
"or  his  order,"  182  n. 
"three  months,"  182  n. 
"dollars,"  "pounds,"  &c,  187. 

Blanks  : 

erasure  not  authorized  by  blank,  182. 

filling  a  blank  note  as  a  joint  and  several  is  not,  182  n. 

signing  in  hlank  as  surety  does  not  authorize  the  writing  of  a  note  above 
it  and  adding  a  seal,  182  n> 

where  blank  is  left  for  name  of  drawee,  indorser  cannot  be  changed  into 
an  acceptor  without  a  material,  171. 
enlarging  the  amount  discharges  the  surety  and  is  a  material,  187,  194. 
tearing  off  the  marginal  figures  is,  187,  194. 

when  such  alteration  becomes  possible  by  the  negligence  of  the  maker.  187. 
increasing  amount  in  space  left  by  maker,  187. 

alteration  in  contemporaneous  memorandum  expressing  a  condition  is.  ls7. 
cutting  it  off  avoids  the  note.  1ST. 

as  to  place  of  payment  in  memorandum  to  a  note  is.  193. 
altering  the  amount  is,  194. 
in  memorandum  as  to  interest,  195. 
of  date  new  stamp  unnecessary,  210. 
as  to  one  joint  and  several  maker,  discharges  all,  149  n. 
!>v  adding  another  signature,  14'.'. 


640 


INDEX. 


Reference  is  to  Sections. 

ALTEEAT  ION— Continued. 

adding  memorandum  with  place  of  payment,  123  n. 

cutting  oft"  "  president "  and  "  secretary  "  from  signature  when  the  execution  i* 
not  denied  in  the  plea,  133. 

adding  "on  demand,"  is  not  a  material,  119  n. 

erasing  "this  note  is  given  on  condition,"  is  not  a  material,  94. 

marginal  figures  immaterial,  105  n. 

number  on  a  bond  immaterial,  105  n. 

adding  "  from  maturity,"  is  a  material,  105  n. 

adding  "  or  bearer,"  is  a  material,  174  n. 

adding  a  seal  is  a  material,  at  common  law,  70. 

of  date,  84. 

date  does  not  affect  rights  of  the  indorsee,  82,  84. 

date  discharges  acceptor,  84. 

such  alteration  in  England  should  be  pleaded  specially,  8*4  n. 

date  discharges  surety,  84. 

correction  of  a  mistake  in  the  day  and  year  discharges  surety,  84. 

of  mistake  in  date  before  delivery  by  agent  of  drawer  and  acceptor  will  not  dis- 
charge either,  84. 

alteration  before  delivery  and  authorized  by  surety,  84  n. 

addition  of  "  in  gold,"  an  immaterial  alteration  under  Legal  Tender  act,  98. 

an  agent  cannot  change  the  order  of  the  indorsements  upon  a  note  without  a  ma- 
terial, 361. 

the  fact  of  their  being  accommodation  indorsements  implies  no  power  of  altera- 
tion, 361. 

AMERICAN  STATUTES, 

fictitious  payee  equivalent  to  bearer,  163. 

payee's  name,  169. 

"value  received"  in,  178,  180. 

as  to  adding  words,  &c,  such  as  exchange,  &c,  201  n. 

attorney's  fees  in  Indiana,  205  n. 
stamps,  209  et  seq. 

rendering  a  bill  void  for  want  of,  is  unconstitutional,  213. 
admissible  in  evidence  in  United  States  courts  without  a  stamp,  214. 
otherwise  in  State  courts,  214. 
foreign  and  inland  bills,  236. 
blanks,  189. 

blank  indorsements,  189. 
blank  indorsement  in  Massachusetts,  188. 
sealed  instruments,  70,  71. 
assignee's  liability  in  Mississippi,  70  n. 
negotiability  of  sealed  bills,  71. 
what  is  a  seal,  72. 
a  scroll  is,  72. 
date,  75. 
in  Iowa  an  infant  is  liable  for  false  representations  as  to  his  age  on  bill  oi  note 

272-. 
ratification  must  be  in  writing,  276. 
on  disaffirmance  must  return  consideration  in  Iowa,  277. 


INDEX.  641 

Reference  is  to  Sections. 

AMERICAN  STATUTES—  Continued. 

Married  women  : 

transfer  by  husband  or  wife  insolvent  assignments,  322. 

wife's  property  when  liable  for  husband's  debts,  323. 

Pennsylvania,  323. 

note  to  wife  prima  facie  her  separate  property  in  Alabama,  323. 

in  Vermont  if  not  reduced  to  possession  by  the  husband,  her  choses  ii 

action  go  to  her  next  of  kin,  326. 
reduction  to  possession  abolished  in  New  Jersey,  326. 
married  women,  liability,  279,  280. 

liability  on  bill  or  note,  283,  291. 
on  her  indorsement,  288. 
liability  as  surety,  289. 
given  as  a  sole  trader,  299. 
in  Colorado  and  New  York,  299. 
liability  on  indorsement  in  Wisconsin,  306. 
effect  on  contribution  with  husband,  315. 
suit  by  wife  against  husband  in  Nebraska,  316. 
as  to  negotiable  words  in,  174. 
indorsement  of  note  to  "A.  or  bearer,"  175. 
place  of  payment,  128. 
transfer  of  bill  or  note  to  bearer  by  delivery,  159. 

note  to  "A.  B.  or  bearer,"  160. 
deceased  person  payee  (Kentucky),  150  n. 
payable  to  maker's  order  liable  as  if  payable  to  bearer,  153. 
note  or  bill  must  be  in  writing,  60. 
signature,  62,  63. 
attestation  of,  68. 
mark  is  a  sufficient,  64. 
conditions  affecting  negotiability,  92  n. 
payable  in  money  or  property,  96. n. 
United  States  Legal  Tender  Act  of  1862,  98. 
payable  in  goods  or  merchandise,  101. 
the  amount  designated  must  be  certain,  106. 
restrictions  as  to  the  amount  to  be  paid,  106. 
as  to  time  of  payment,  109. 
payable  on  demand  when  due,  117. 

"  without  defalcation  or  discount,"  how  far  affects  negotiability,  86. 
note  "given  for  a  patent-right,"  86. 
due  bills  are  promissory  notes,- 88. 
acknowledgment  of  indebtedness,  88. 
certificates  of  deposit  are  negotiable,  89  n. 
warehouseman's  receipts  are  negotiable,  89  n.,  90  n. 
receipts  are  negotiable,  90  n. 
National  Banking  Act,  331,  332. 
State  Banking  Acts,  331,  332. 
Massachusetts  making  legal  defenses  against  the  payee  of  a  note  available  asrainst 

the  indorsee,  404. 
on  the  execution  of  notes  and  hills  by  agents,  352. 

2o 


642  INDEX. 

Reference  is  to  Sections. 

AMOUNT, 

Blank 8 : 

lilling  blanks  left  for  the,  105,  1ST. 

an  unlimited  authority  to  fill  blank  with  any  amount,  105,  187. 

limited  in  England  by  the  stamp,  105,  1ST. 

may  be  limited  by  marginal  figures,  187. 

no  defense  against  a  bona  fide  holder  that  the  blank  lias  been  tilled  with 

greater  amount,  105,  187. 
discounting  a  note  with   blank  raises  no  presumption  against   the  bona 

fides  of  the  holder.  187. 
marginal  lignres  alone  insufficient  in  Iowa  to  support  a  recovery,  194  '>. 
alteration  discharges  surety,  187. 
may  be  designated  in  any  currency,  106. 
"sterling,"  "currency,"  "dollars,"  "pounds,"  "shillings,"  &c,  meaning  of,  96  el 

scq.,  106. 
mistake  in  the,  may  be  corrected  or  set  up  in  defense,  106. 
cannot  be  varied  by  parol  evidence,  106. 
fraud  or  mistake  may  be  shown  by  parol,  106. 

Certainly  : 

American  statutes  requiring  certainty  in  the,  106. 

restrictions  by  statutes  as  to  the,  106. 

must  be  certain,  104. 

for  illustrations,  see  104. 

sufficient  if  the  amount  can  be  ascertained,  104. 

"  with  interest,"  is  not  uncertain,  104. 

nor,  "with  current  exchange  on  B.,"  104. 

nor  mere  misspelling,  "fife  hundret,"  104. 

"thee  hundred,"  104. 
counsel  fees,  104  n. 
marginal  figures,  105. 
marginal   figures   differing   from  the  amount   mentioned  in  the  body, 

105. 
foreign  statutes  as  to  figures  and  blanks,  105. 
may  be  expressed  either  in  words  or  figures,  105. 

ANTE-DATING, 

effect  of,  76,  79. 

blank  date  cannot  be  ante-dated,  186. 

void  in  the  hands  of  subsequent  holder  with  notice,  76,  186. 

valid  in  hands  of  a  6o?ia  fide  holder  without  notice,  76,  186. 

invalid  for  fraud,  79. 

may  be  shown  by  parol  evidence,  79. 

may  be  ratified,  79  n. 

Statute  of  Limitations  runs  from  its  delivery  and  not  from  its  date,  85. 

APPRAISEMENT  AND  EXEMPTION  LAWS, 

waiver  of  in  note  or  bill,  207. 

"AS," 

execution  of  note  or  bill  by  agent  "as"  such,  144,  136  n. 


INDEX.  643 

Reference  is  to  Sections. 

ASSIGNEE. 

note  made  payable  to,  and  .so  indorsed,  134,  158. 

ASSIGNMENT, 

validity  determined  by  the  lex  loci  contractus,  48. 

an  authority  to  assign  a  note  will  not  include  a  power  to  transfer  it  as  collateral 

for  individual  debt  of  agent,  361. 
of  partnership  assets  for  benefit  of  creditors,  434. 

Married  icomev  : 

an  assignment  in  bankruptcy  by  husband  will  not  carry  a  note  to  wife 
before  marriage,  322. 

will  carry  such  a  note  made  after  marriage,  322. 

a  husband's  insolvent  assignment  carries  his  wife's  note,  322. 

an  assignment  of  her  note  as  collateral  will  not  defeat  her  survivorship, 
322. 

a  note  payable  to  a  married  woman  may  be  transferred  by  joint  assign- 
ment of  husband  and  wife,  322. 

ASSIGNS, 

equivalent  to  "or  order,"  and  renders  a  note  negotiable,  174. 
effect  on  negotiability  of  sealed  bond,  174  n. 

"AT  HIS  OWN  RISK," 

a  special  indorsement :  the  indorser  is  not  liable  on,  176. 

"AT  SIGHT," 

payable,  matures  when  presented.  16. 
equivalent  to  demand.  109. 

ATTACHMENT, 

against  husband  cannot  reach  note  of  wife,  322. 

can  reach  note  of  wife,  323. 
so.  a  wife's  interest  in  her  father's  estate  has  been   held  subject  to  an  attachment 

against  her  husband,  323. 
court   will  not   compel  reduction  to  possession  by  husband  in  order  to  enforce 

attachment,  323. 
so,  a  note  never  reduced  to  possession  by  husband  is  not  subject  to  attachment 
against  husband,  323. 

ATTESTATION  BY  WITNESSES, 

notes  and  bills  do  not  require,  68. 

not  customary  nor  desirable  to  have  an.  68. 

even  though  note  be  signed  by  a  mark,  68. 

unless  required  by  statute,  68. 

distinction  between  notes  and  bills  that  are  attested,  and  those  that  are  not,  at 

affected  by  the  Statute  of  Limitations,  68. 
must  be  legally  competent  at  the  date  of,  68. 
what  is  not  an,  68. 
must  be  specially  pleaded,  68. 

need  not  be  in  any  particular  position  on  the  paper,  68. 
cannot  be  on  the  face  for  signature  on  the  back,  88. 
when  a  question  for  the  jury,  68. 


644  INDEX. 

Reference  is  to  Sections. 

ATTESTATION  BY  WITNESSES— Omtfnued. 

American  statutes,  68. 
English  statutes,  68. 
proof  of,  69. 
when  dispensed  with,  69. 

ATTORNEY'S  FEES, 

stipulation  for,  validity  of,  205,  206. 

may  be  recovered  by  subsequent  holder,  205. 

binding  on  acceptor,  205. 

conditional  stipulation  for,  prohibited  in  Indiana,  205  n. 

must  be  proved  if  no  amount  designated,  205. 

"  reasonable  attorney's  fees,"  amount  must  be  proved,  205. 

cannot  be  made  to  evade  usury  laws,  205. 

does  not  affect  negotiability  of  the  note,  205,  206. 

stipulation  for,  "  if  suit  be  instituted,"  20o. 

stipulation  for,  "should  this  note  be  collected  by  legal  process,"  205. 

in  Illinois  cannot  be  recovered  in  original  suit  when  note  provides  that  they  shall 

be  paid  when  the  note  is  due  and  sued  upon,  205. 
in  Michigan  such  stipulation  for,  is  void,  206. 
taxes  and  charges  destroy  negotiability,  206. 
opinion  by  Cooley,  J.,  affecting  stipulation  for,  206  n. 
equivalent  to  a  condition,  92  n. 

"AU  BESOIN," 
what,  4. 

AUTHORIZE, 

"  we  authorize  you  to  pay  A.  B.  or  order,"  is  not  sufficient  to  make  a  bill  of 
exchange,  87  n. 

"AVAL," 
what,  4. 

B. 

BANKS, 

execution  of  note  or  bill  by,  133,  370. 
payable  to  its  "cashier,"  133. 

indorsement  by  the  cashier,  as  "A.  B.,  Cashier,"  133. 
bank  is  liable  on  such  indorsement,  133. 

such  is  the  proper  form  of  an  indorsement  or  acceptance  by,  133,  370. 
powers  of,  under  National  Banking  Act,  331,  332. 
State  Banking  Acts,  332. 
savings  banks,  332. 
Hank  of  England,  332. 
officers,  370,  371. 
cashier,  370. 
teller,  371. 

See  Cashier — President — Teller. 

BANK  BILLS, 

a  certificate  of  deposit  "  payable  in  current  bank  bills,"  90. 
See  Bank  Notbs. 


INDEX.  645 

Reference  is  to  Sections. 

BANK  NOTES, 
defined,  9. 

circulates  as  money,  9. 
are  not  "  securities,"  but  money,  9  n. 

the  right  to  issue  in  most  countries  is  restricted  by  statute,  9. 
a  certificate  of  deposit  "  payable  in  current  bank  bills,"  90. 
paper  payable  in,  100. 
looses  its  negotiability,  100. 
for  a  variety  of  illustrations,  see,  100. 
are  not  money,  100  n. 
proof  of  a  note  payable  in,  will  not  sustain  a  declaration  on  a.note  payable  in 

money,  100  n. 
Statute  of  Limitations  runs  from  demand,  not  from  date,  85  n. 

BANKRUPT, 

in  England  a.  cannot  take  a  bill  or  note  by  indorsement  before  receiving  his  dis- 
charge, 247. 

if  transferred  before  petition  filed  he  may  afterwards  indorse  it  to  make  the 
transfer,  247. 

and  in  such  case  the  court  may  direct  his  assignee  to  complete  the  transfer,  247. 

in  IT.  8.  a  check  drawn  before  an  assignment  but  not  presented  until  afterwards 
will  not  transfer  the  fund,  247. 

may  draw  on  his  own  check,  247. 

transfer  by  a,  247. 

a  surviving  partner  being  a  certificated  bankrupt,  an  action  may  be  maintained 
against  the  executor  of  the  deceased  partner,  426. 

BANKRUPTCY, 

in  case  of  factor's,  a  note  for  money  due  the  principal  taken  in  factor's  name 

belongs  to  the  principal  and  not  to  creditors  of  the  factor,  156  n. 
dissolution  of  firm  by  secret  act  of,  effect  of  acceptance  by  solvent  partner,  435. 
dissolution  of  firm  by,  effect  of,  437. 

BEARER, 

designates  holder,  14,  159. 

when  necessary  to  negotiability,  174. 

American  statutes,  174. 

foreign  statutes,  174. 

paper  payable  to  is  negotiable  by  delivery,  175. 

not  prima  facie  evidence  of  negotiability,  90  n. 

interest  coupons  payable  to,  are  negotiable,  91,  159. 

though  detached  from  the  bond  to  which  they  belong,  91,  159. 

sufficient  for  payee's  name,  150. 

though  the  holder  as  bearer  cannot  sue  on  it  if  no  payee  be  designated,  150. 

though  an  action  may  be  brought  on  the  original  consideration  between  the  parties 

to  it,  150. 
original  bearer  is  subject  to  all  defenses  which  would  have  affected  him  if  he  had 

been  named  as  payee,  159. 
railroad  bonds  payable  to,  159. 

formerly  held  a  bond  could  not  be  made  payable  to,  159. 
Inn  might  be  indorsed  by  the  payee  named  in  it,  159. 


646  INDEX. 

Reference  is  to  Sections. 

BEAEER— Continued. 

declaration  upon  a  corporation  bond  payable  to  bearer  need  not  show  to  whom  it 

was  first  delivered,  L59. 
In  Indiana  the  negotiability  of  such  notes  payable  to,  has  been  restricted  to  such 

as  are  payable  at  a  bank  in  that  State,  159. 
In  Alabama  are  transferable  by  delivery  only  if  made  by  a  bank  and  "  issued  to 

circulate  as  money,"  159. 
in  other  cases  they  are  transferable  only  by  indorsement  or  assignment,  1">'.'. 
and  the  bearer  cannot  sue  in  his  own  name,  159. 

in  Massachusetts  the  holder  must  show  himself  to  he  a  holder  for  value,  159. 
the  holder  is  presumed  to  he  a  holder  for  value,  159. 

the  presumption  is  shifted  if  the  note  be  proved  to  have  been  lost  or  stolen,  159. 
at  common  law  a  note  payable  to  ''A.  B.  or  bearer"  is  equivalent  to  one  payable 

to  bearer  only,  1(50. 
such  a  note  is  transferable  by  delivery,  160. 
the  holder  is  prima  facie  the  lawful  owner,  160. 
the  declaration  need  only  aver  possession,  160. 
if  transferred  by  the  indorsement  of  A.  B.,  the  indorsement  need  not  be  proved, 

160. 
such  note  may  be  delivered  in  the  first  instance  to  any  person  without  regard  to 

the  name  of  A.  B. 
a  distinction  was  made  in  Ohio  between  such  a  note  and  a  sealed  note  payable 

to  "A.  B.  or  hearer,"  160. 
in  Illinois  a  distinction  is  made  between  notes  and  bills  payable  to  "bearer"  and 

those  payable  to  "A.  B.  or  bearer,"  160. 
and  the  hitter  can  only  he  transferred  by  indorsement,  160. 
so  in  Missouri,  Alabama  and  Texas,  160. 
a  note  payable  "to or  bearer"  the  original  holder  may  sue  upon  it  without 

filling  the  blank,  160. 
on  averment  and  proof  that  the  note  was  delivered  to  him  by  the  maker  and  that 

he  is  the  owner  and  bona  tide  holder  of  it,  160. 
a  note  payable  to  "A.  B.,  bearer,"  is  a  note  payable  to  A.  B.  only,  160. 
such  a  note  is  not  negotiable,  160. 
a  note  payable  to  "A.  or  bearer,"  175. 

formerly  such  instruments  were  thought  not  to  he  negotiable,  175. 
in  some  States  they  are  assignable  by  indorsement  only,  175. 
payable  "  to  the  bearer,  A.,"  is  equivalent  to  being  payable  to  A.  only,  175. 
such  a  note  is  not  negotiable,  175. 
if  a  note  by  two  persons  be  payable  to  one  of  them  "  or  bearer,"  the  bearer  ruav 

sue  both  makers  although  the  payee  could  not,  160. 
a  note  payable  to  a  fictitious  person  is  equivalent  to,  161. 

BILLS  OF  CREDIT, 
defined,  349  n. 
what  are,  349. 
State  certificates  are,  349. 
State  hank  bills  are  not,  349. 
constitution  of  the  United  States  prohibits  the  States  from  issuing,  349. 

BILLS  OF  EXCHANGE, 

defined,  3. 
form,  3  n. 


ixdex.  647 

Reference  is  to  Sections. 

BILLS  OF  EXCHANGE— Continued. 

origin,  232. 

foreign  and  inland,  distinction  between,  3,  232,  233,  234,  236 

foreign  bills  in  the  United  States,  233. 

an  order  indorsed  on  a  bond  or  note  is  equivalent  to  a,  86 

an  indorsement  is  equivalent  to  a,  234 

American  statutes,  236. 

See  Foreign  Bills — Inland  Bills. 

"BILLS  PAYABLE," 

a  note  or  bill  payable  to,  161. 

BLANKS, 

incomplete  until  rilled,  183. 

must  be  filled  within  a  reasonable  time,  183. 

what  is  a  reasonable  time  is  a  question  for  the  jury,  183. 

may  be  filled  after  a  transfer  by  indorsement,  183. 

after  maturity,  183. 

after  drawer  has  become  insolvent,  183. 

before  trial,  1G7. 

at  the  trial,  1S3. 

after  judgment,  183. 
filling  relates  back  to  the  time  of  delivery,  183. 
authority  to  fill  in  general  ends  at  maker's  death,  1S3. 
blank  acceptance  coupled  with  an  interest,  183. 
a  bill  delivered  in   Bavaria  with  blanks  which   were  filled  up  in  London  are 

foreign  bills,  183. 
sealed  instruments,  1S4. 
coupon  bonds,  184. 
omissions  are  not,  182. 
does  not  authorize  additions,  182. 
erasures,  182. 
nor  to  fill  in  unusual  provisions,  182. 
e.  g.  waiver  of  appraisement,  182. 
may  be  either  negotiable  or  non-negotiable,  182.  • 

liable  to  a  bona  fide  holder,  182. 

filling  a  blank  note  as  a  joint  and  several  note,  182  n. 
adding  a  seal,  effect  of  in  Ohio,  182. 
authority  to  fill,  181,  373. 
Mich  authority  to  fill  is  derived  from  the  implied  agency  created  by  the  maker's 

act  in  putting  the  paper  into  circulation,  181,  373. 
no  authority  to  till  after  the  paper  has  been  stolen,  181. 
writing  an  acceptance  on  a  piece  of  blank  stamped  paper,  181. 
a  note  may  be  written  over  a  blank  signature,  181. 
indorsement  on  a  blank  paper,  181. 
after  twelve  years,  181  n. 
by  administrator,  181  n. 

after  notice  of  the  absence  of  authority,  181  n. 
by  note  over  blank  signature  though  only  surety  intended,  181  n. 
restrictions  from  printed  form,  181. 
mistake  by  negligence  no  defense  at  the  suit  of  a  bona  fide  holder,  181. 


648 


INDEX. 


Reference  is  to  Sections. 

BLANKS — Continued. 

signing  intended  for  a  different  purpose,  181. 

there  must  be  shown  an  intention  to  make  a  bill  or  note,  181. 

authority  only  implied  from  voluntary  delivery,  181. 

not  when  paper  is  stolen,  181. 
negotiable  or  non-negotiable  note  may  be  written,  181. 
a  blank  note  by  agent  in  principal's  name,  373. 
an  indorsement  in,  is  a  letter  of  credit,  373. 

for  an  indefinite  sum,  373. 
and  the  giver  is  liable  to  a  bona  fide  holder,  373. 
an  acceptance  in,  may  be  filled  after  acceptor's  death,  373. 
a  guaranty  may  be  written  over  an  indorsement  in,  373. 

if  such  was  the  indorser's  intention,  373. 

and  such  intention  may  be  shown  by  parol  evidence,  373. 
a  blank  indorsement  may  be  shown  to  be  a  receipt,  373. 

Partners  and  partnership  : 

may  be  filled  after  the  death  of  one  of  the  makers  of  a  partnership  note, 

183. 
the  amount  of  a  partnership  note  after  the  dissolution  of  the  firm,  the 

payee  not  having  notice  of  that  fact,  183. 
includes  a  partnership  note  made  by  one  partner,  182. 
indorsements  in,  by  partner  in  firm  name,  431. 
note  indorsed  in  firm  name  by  one  partner  and   transferred   by  him 

after  dissolution  of  the  firm,  431. 
presumption  that  it  was  properly  indorsed  and  transferred  to  such  part- 
ner at  the  time  of  its  date,  431. 
filling  blanks  after  death  of  partner,  431. 
acceptance  by  one  partner  in  fraud  of  the  firm  with  blank  for  drawer's 

name,  425. 
when  such  bill  is  left  negligently  within  the  control  of  a  clerk  who  dates 
it  back  and  negotiates  it  in  fraud  of  the  firm  after  death  of  partner 
drawing  it,  425. 
payee  need  not  be  filled  if  to  blank  "  or  bearer,"  160. 
bearer  may  aver  original  delivery  to  self  and  that  he  is  the  bona  fide  holder  of  it, 

160. 
in  Illinois  a  due  bill,  "  Good  for  fifty  cents,"  was  treated  as  if  the  payee's  name 

had  been  left  blank,  150,  167. 
and  the  holder  was  allowed  to  add  "  to  myself  or  order"  and  sue  on  it  as  a  valid 

note,  150,  167. 
place  of  payment  may  be  filled  in,  123,  128. 
filled  contrary  to  a  verbal  agreement  binds  the  maker  at  suit  of  a  bona  fide  holder, 

128  n. 
payee's  name  in  sealed  bond,  74  n. 
payee's  name,  167. 

equivalent  to  bearer,  167,  185. 
filled  up  by  a  bona  fide  holder,  167. 

before  trial,  167. 
if  indorsed  by  the  original  payee  blank  may  be  filled  with  his  name,  167  n. 
a  blank  indorsement,  167. 

may  be  tilled  by  a  bona  fide  holder,  167. 


index.  649 

Reference  is  to  Sections. 

BLANKS—  Continued. 

to  render  acceptor  liable  with  payee's  mime  blank  holder  must  prove  authority 
from  the  drawer  to  fill  such  blank,  167. 

where  payee's  name  is,  the  instrument  is  incomplete,  167. 

when  need  not  be  filled,  167. 

in  England  a  bill  with  payee's  name  blank,  being  incomplete,  cannot  be  the  sub- 
ject of  forgery,  168,  185. 

otherwise  in  Indiana,  168,  185. 

in  sealed  bonds,  168. 

whether  a  blank  in  such  bonds  can  be  filled  the  authorities  disagree,  16S,  184. 

in  sealed  bonds  that  are  non-negotiable,  168. 

an  authority  to  fill  payee's  name  extends  to  a  surety,  168. 

extends  to  a  co-maker,  168. 

when  filled  up  contrary  to  an  agreement  between  maker  and  indorser,  168. 

amount  payable,  105. 

implied  authority  to  fill,  105. 

where  authority  is  exceeded,  no  defense  in  hands  of  a  bona  fid 'e  holder,  105. 

so  a  surety  is  liable  when  the  maker  fills  the  blank  contiar.  [<>  his  verbal  agree- 
ment with  the  surety,  105  n. 

drawer's  name  may  be  added  after  blank  acceptance,  185. 

co-obligor's  name  to  a  note  signed  in  blank,  185. 

co-sureties  different  from  agreement,  no  defense  in  hands  of  a  tona  fide  holder,  185. 

maker's  name  may  be  added  after  blank  indorsement  by  payee,  185. 

the  drawee's  name  is  supplied  by  the  acceptance,  185. 

payee's  name  blank  may  be  filled  with  holder's  or  third  person's  name,  185. 

though  there  was  an  agreement  between  the  original  and  immediate  parties  for 
the  insertion  of  some  other  name,  185. 

the  blank  may  be  filled  after  the  note  has  been  transferred  by  an  indorsement  in 
blank,  185. 

cannot  be  filled  so  as  to  make  the  first  indorser  a  guarantor,  185. 

the  payee's  name  in  a  non-negotiable  sealed  note  cannot  be   filled   in  by  the 
holder,  185  n. 

when  the  holder  inserts  his  own  name  he  does  not  thereby  assume  the  liability  of 
the  original  parties,  185. 

the  onus  of  proving  such  fact  is  on  the  holder,  185  n. 

Date  : 

date  may  be  filled  by  the  holder,  186. 

may  be  done  after  the  death  of  one  of  the  makers  of  a  partnership  note, 

186. 
qucere,  whether  this  power  extends  to  ante-dating,  186. 
blank  date  only  prima  facie  evidence  of  an  authority  to  fill  it  with  any 
date,  186. 
time  of  payment  may  be  filled  in,  186. 
no  defense  in  hands  of  a  bona  fide  holder,  186. 
mistake,  186. 

Place  of  payment : 

place  of  payment  may  be  filled  in,  186. 

cannot  be  done  in  a  sealed  bond  stolen  before  the  blank  was  filled,  186. 
when  no  blank  i~  left  then-  i<  no  implied  authority  to  insert  a  place  of 
payment,  1  36. 


650  INDEX. 

Reference  is  to  Sections. 

BLANKS— Continued. 

but  a  blank   acceptance   implies   an   authority  to  accept   payable  at  a< 

particular  place,  186. 
no  defense  for  an  accommodation  indorser,  186. 
rate  of  interest  may  be  filled  in,  186. 
amount  of  interest  that  may  be  recovered,  186. 

Amount: 

restricted  in  England  by  the  stamp  on  the  paper,  187. 

by  the  marginal  figures,  187. 

if  made  larger  than  amount  agreed  upon  will  discharge  a  surety,  187. 

no  defense  in  hands  of  a  bona  fide  holder  that  a  greater  amount  than  was 

intended  was  inserted,  187. 
notice  to  holder  that  blank  has  been  filled  with  greater  amount  than 

intended,  187. 
the  mere  discounting  of  a  note  with  such  a  blank  raises  no  presump- 
tion against  the  bona  fides  of  the  holder,  187. 
authority  to  fill  depends  on  delivery,  224. 

such  authority  does  not  exist   where  the  paper   has  been  stolen  from 
the  maker  before  the  blanks  were  filled,  224. 
'dank  indorsements,  meaning  and  effect  of,  185,  188. 
prohibited  by  statute  by  the  Spanish  Commercial  Code  and  the  Code  Napoleon,. 

189. 
American  statutes,  189. 
foreign  statutes,  189. 
in  some  countries  a,  is  a  mere  power  of  attorney  to  collect,  189. 

See  Acceptance — Alteration — Indorsements  in  Blank. 

BONA  FIDE  HOLDEK, 

defined,  14. 

takes  free  from  defenses,  14. 

notwithstanding  knowledge  that  it  was  accommodation  paper,  15. 

determined  by  lex  loci  contractus,  38. 

defenses  determined  by  lex  loci  contractus,  50. 
when  the  note  is  "given  for  a  patent  right"  subject  to  defenses,  86  n. 

if  such  words  are  omitted  in  the  note,  no  defense,  86  n. 
parol  evidence  when  not  admissible  against  a  bona  fide  holder,  149  n. 
notice  when  necessary  to  affect  bona  fide  holder,  149  n. 

note  indorsed  in  blank  by  maker  not  subject  to  equities  in  the  hands  of,  153  n.,  154.. 
certificate  of  stock  in  name  of  "A.  B.,  trustee,"  is  notice  to  pledgee,  158  n. 
original  bearer  is  not,  159. 
discounted  with  blank  raises  no  presumption  against  the  b  >n  ifi  les  of  the  holder, 

187. 
want  of  a  stamp  wiU  net  affect  the  bona  fides  of  the  holder,  211  n. 
non-negotiable  instrument  delivered  to  bailee  for  transmission,  220  n. 
a  note  signed  by  one  and  delivered  to  another  to  get  a  second  signature,  the  want 

of  such  other  signature  no  defense  in  hands  of  bona  fide  holder,  227. 
the  defense  that  the  note  was  delivered  in  escrow  throws  the  onus  on  holder  t<r 

show  that  he  is  a  bona  fide  holder,  2'27  n. 
that  the  note  was  delivered  in  escrow  no  defense,  230. 
payee  through  fraud  by  maker's  agent,  230  n. 


INDEX.  651 

Reference  is  to  Sections. 

BONA  FIDE  HOLDEK—  Continued. 
a  note  given  on  condition,  230. 
defenses  for  want  of  delivery  at  suit  of  a  bona  fide  holder,  230. 

Agents : 

the  giver  of  a  note  in  blank,  liable  to  a,  for  whatever  sum  may  be  writ- 
ten in  the  blank,  373,  390. 

maker  as  agent  for  payee  uses  a  fictitious  name  to  raise  money  for  the 
payee  not  individually  liable  to  a,  383. 

want  of  authority  of  an  agent  as  a  defense  at  suit  of  a,  386. 

when  A.  sells  a  bill  for  B.,  who  has  held  it  as  agent  and  misappropri- 
ated it,  and  pays  over  to  B.  a  part  of  the  proceeds  only,  he  is  not  en- 
titled to  the  protection  of  a,  387. 

principal  and  agent,  defenses,  at  suit  of,  390. 

not  subject  to  any  defense  arising  from  agent's  fraud  or  want  of  author- 
ity, 391. 

suffering  one  to  draw  bills  in  his  name  liable  to  a,  392. 

though  he  may  have  received  no  consideration   for,  and  had  no 
knowledge  of,  the  particular  bill,  392. 

no  defense  at  suit  of  a,  that  principal's  instructions  to  agent  have  been 
violated,  392. 

a  note  for  goods  sold  by  an  agent  payable  to  the  agent,  principal  is  not 
a,  156. 

Partners  and  partnersh  ip  : 

a  note  given  by  active  partner  in  firm's  name  will  bind  dormant  part- 
ners in  the  hands  of,  396. 

note  made  by  one  firm  and  indorsed  by  another  to  one  who  is  a  common 
partner  in  both  firms,  assent  will  be  presumed  in  favor  of  a,  399. 

a  note  in  firm  name,  but  not  used  in  its  business,  firm  liable  at  suit  of  ar 
401. 

though  renewed  with  knowledge  that  it  was  made  for  individual  debt, 
401. 

payees  named  as  a  firm  by  a  fictitious  name,  rightful  title  will  lie  pre- 
sumed in  a,  from  possession  under  an  indorsement  in  the  assumed 
name,  by  one  of  the  actual  payees,  407  n. 

firm  holding  without  indorsement  note  payable  to  one  of  its  members 
and  given  for  money  loaned  by  the  firm  is  not  a,  so  as  to  exclude 
defense  of  illegality  of  consideration,  411. 

partnership  paper  defenses,  when  inadmissible  at  the  suit  of  a,  416. 
fraud,  424. 

when  firm  has  shown  that  note  was  given  for  the  individual  del.!  of  one 
partner,  the  onus  is  then  on  the  holder  to  show  himself  a.  41-. 

the  fact  that  note  was  made  by  and  payable  to  the  individual  partner 
and  indorsed  by  him  in  his  own  name  and  in  that  of  his  firm  is  not 
sufficient  notice  to  destroy  the  character  of  a,  421  n. 

no  defense  against  a,  that  paper  was  given  for  accommodation  by  one 
partner  without  consent  of  others,  422. 

but  if  the  transfer  is  such  as  to  arouse  suspicion,  the  purchaser  will  not 
be  regarded  as  a,  422. 

no  defense  at  suit  of  a.  that  the  paper  was  executed  in  violation  of  the 
articles  of  partnership,  42:'>. 


652  INDEX. 

Reference  is  to  Sections. 

BONA  FIDE  HOLDEK— Continued. 

paper  made  after  dissolution  of  firm  and  ante-dated  not  binding  in  the 

hands  of  a,  431. 
dissolution  of  firm,  affect  of  on  paper  at  suit  of  a,  435,  437. 

Corporations  : 

making  a  note  to  a  corporation  which  has  been  transferred  to  a,  maker 
is  estopped  from  denying  the  existence  of  the  corporation,  331. 

a  corporation  bill  or  note  prohibited  by  the  English  Banking  Act  is 
valid  in  the  hands  of  a,  332. 

a  corporation  exceeding  its  power  by  taking  a  note  for  a  stock  subscrip- 
tion, is  good  in  the  hands  of  a,  334. 

an  accommodation  bill  or  note  though  executed  ultra  vires  is  good  in 
the  hands  of  a,  334. 

but  if  executed  in  violation  of  an  express  statute  it  is  void  in  the  hands 
of  a,  334. 

presumed  to  have  been  lawfully  executed  in  the  hands  of  a,  335. 

Municipal  corporations : 

municipal  bonds  at  the  suit  of  a,  336,  339,  340,  343,  344,  345,  347. 

municipal  warrants,  suit  of  replevin  against  a,  337. 

want  of  authority  to  issue  municipal  warrants  as  a  defense  at  the  suit 
of  a,  389. 
See  Notice. 

BONDS, 

presumption  as  to  negotiability,  34. 
coupons,  34,  159. 

may  be  payable  to  bearer,  159,  327. 

a  declaration  on  such  a  bond  need  not  show  to  whom  it  was  first  delivered,  159. 
corporation  bonds  under  seal  are  negotiable,  74. 
blanks  in  sealed  bonds  may  be  filled  in,  184. 
coupon  bonds  may  be  filled  in,  184. 
when  negotiable  is  equivalent  to  a  promissory  note,  327. 
if  stolen,  is  subject  to  defenses,  327. 

Government  bonds : 

obligations  issued  by  governments  as  security  for  public  debt  generally 
take  the  form  of,  348. 

either  with  or  without  coupons,  348. 

are  negotiable  instruments,  348. 

and  may  be  transferred  as  such,  348. 

so  held  as  to  United  States  treasury  notes,  348  n. 

so  of  State  bonds,  348  n. 

so  of  detached  government  coupons,  348  n. 

so  of  an  indorsement  by  a  State  of  a  negotiable  railroad  bond,  348  n. 

if  negotiability  is  restricted  by  special  indorsement,  transfer  is  then  sub- 
ject to  defense,  348. 

if  stolen  after  such  indorsement  it  may  be  recovered  in  trover,  348. 
even  from  a  bona  fide  purchaser,  348. 

to  constitute  a  valid  security,  must  be  issued  under  the  authority  of  the 
constitutional  and  statute  law,  348. 
See  Corporation-  Bonds  —  Municipal  Bonds. 


INDEX.  653 

Reference  is  to  Sections. 

BORROWED, 

"  I  have  borrowed"  implies  a  promise  to  pay,  87. 
effect  in  a  due  bill,  88. 

BUEDEN  OF  PBOOF, 
See  Evidence. 

BY  ORDER  OF, 

principal  shown,  and  liable  when  note  executed  by  an  agent,  principal,  139. 

c. 

CANCELLATION, 

negotiable  and  incomplete— when  a  defense  at  the  suit  of  a  bona  Me  holder,  217. 

CAPACITY, 

what  law  governs,  35. 

in  general  governed  by  the  lex  loci  contractus,  35. 

civil  restrictions,  244  et  seq. 

in  general  all  persons  who  can  contract  can  become  parties  to  commercial  paper, 
244. 

want  of  capacity  may  be  either  natural,  legal  or  political,  244. 

who  are  naturally  incapable,  244. 
legally,  244. 
politically,  244. 

making  of  a  note  admits  the  payee's  capacity  to  receive  it,  244. 

so  the  drawing  of  a  bill,  244. 

likewise  his  capacity  to  indorse  it,  244,  271. 

though  the  payee  be  fictitious,  244  n. 

may  set  up  insanity,  244  n.,  271  n. 

so  the  accepting  of  a  bill  admits  as  against  a  bona  fide  holder  the  drawer's  capa- 
city to  draw  the  bill,  244. 

so  an  indorser  cannot  question  the  capacity  of  a  subsequent  indorsee  to  receive  and 
hold  it,  244. 

making  admits  incorporation  of  payee,  244  n. 

formerly  merchants  only  were  capable  of  binding  themselves  under  mercantile 
law,  245. 

not  so  now  in  England  and  the  United  States,  245. 

civil  law,  245. 

foreign  statutes,  245. 

merchants,  245. 

clergy,  246. 

soldiers,  246. 

farmers,  246. 

felons,  247. 

bankrupts,  247. 

infants  in  Prussia,  245  n. 

See  Administrators — Agents — Aliens  and  Alien  Enemies— Corpo- 
rations—  Drunkards  —  Executors  —  Governments — Guardians  - 
Idiots — Infants— Lunatics — Married  Women — Municipal  <  orpo- 
rations — Partners  and  Partnership— Trustees. 


654  INDEX. 

Reference  is  to  Sections. 

CASHIER, 

synonymous  with  the  bank,  157. 

payable  to,  as  payee  is  payable  to  bank,  157. 

may  be  sued  by  the  bank  without  indorsement  on  note  payable  to,  133,  157. 

not  necessary  that  the  bank  should  be  named  in  the  instrument,  157. 

suit  may  be  brought  by  the  cashier  in  his  name,  157  n. 

or  by  his  successor,  157  n. 

parol  evidence  admissible  to  show  the  bank  intended  as  payee,  157. 

added  to  signature,  133,  157. 

an  indorsement  by  the  cashier  as  "A.  B.,  Cashier,"  renders  the  bank  liable,  133. 

such  is  the  proper  form  of  an  indorsement  or  acceptance  by  a  bank,  133. 

assistant,  cannot  bind  hank  by  accepting  a  post-dated  check  without  authority, 
371. 

may  bind  bank  by  notes  executed  in  its  name  with  knowledge  of  the  directors, 
375. 

presumed  to  have  authority  to  transfer  bank's  negotiable  securities  by  indorse- 
ment, 393. 

is  the  proper  officer  to  execute  paper  for  the  bank,  370. 

to  forward  its  paper  for  collection,  370. 

may  bind  bank  by  his  certificate  of  deposit,  370. 

or  by  certifying  check,  370. 

and  if  no  funds  in  bank  to  meet  it  bank  liable  to  a  bona  fide  holder,  370. 

no  power  to  give  accommodation  indorsements  in  bank's  name,  370. 

nor  to  indorse  in  its  name  a  note  which  has  been  made  payable  to  it  hut  has  been 
discounted  by  some  other  party,  370. 

bank  may  authorize  its,  to  transfer  notes  belonging  to  it  in  payment  of  its  debts,  370. 

but  such  authority  is  in  general  implied  from  his  official  character,  370. 

has  power  to  purchase  gold,  370. 

may  sell  1  > 1 1 1  of  exchange  and  warrant  that  it  is  "perfectly  safe,"  370. 

no  power  to  transfer  a  non-negotiable  note,  370. 

or  to  assign  a  judgment,  370. 

authority   to  pledge   paper  held  by  the  bank  will   be  presumed  where  he  has 
frequently  transacted  such  business  for  his  bank,  370. 

bank  may  be  estopped  by  his  representations  to  sureties  on  a  note,  370. 

not  so  when  the  surety  is  a  director  of  the  bank,  370. 

cannot  bind  the   bank  by  a  promise  to  refund   moneys  paid  to  it  on  a  forged 
certificate  of  deposit  from  another  bank,  370. 

exchanging  securities  of  depositor,  370. 

notice  to  cashier  is  notice  to  bank,  370. 

CERTAINTY, 

as  to  amount,  104. 

for  illustrations,  see  104. 

sufficient  if  the  amount  can  be  ascertained,  104. 

marginal  figures*  105. 

blanks,  105. 

foreign  statutes,  105. 

designation  of  currency,  106. 

American  statutes,  106 

payment  out  of  a  particular  fund,  107. 


INDEX.  G-J.j 

Reference  is  to  Sections. 

<3ERTAINTY—  Continued. 

payee's  name,  150. 

often  designated  by  the  word  "  bearer,"  150. 

payee's  name  can't  be  in  the  alternative  to  one  or  more  several  payees,  155. 
as  payable  to  A.  or  B.,  155. 
place  of  payment,  121  et  seq. 
foreign  statutes,  121. 
American  statutes,  128. 
as  to  time  of  payment,  109  et  seq. 
See  Amount. 

CERTIFICATE  OF  DEPOSIT, 
defined,  11. 

may  or  may  not  be  negotiable,  11. 

when  negotiable  it  has  the  effect  of  a  promissory  note,  11,  39. 
American  statutes,  89  n. 
bearing  interest  and  redeemable  after  thirty  years  in  New  York,  falls  within  the 

prohibition  of  the  statute  as  to  banking  powers,  332. 
a  statutory  requirement  as  to  the  method  of  executing  notes  and  bills  issued  by  a 

bank  is  not  applicable  to,  367. 

CERTIFIED  CHECKS, 

what  are,  8. 

is  usually  done  by  stamping  the  word  "certified"  or  "good"  on  the  face  of  the 

check,  8. 
is  equivalent  to  the  acceptance  of  a  bill,  8. 
stamp  not  necessary,  210. 
the  authority  of  the  president  of  a  bank  to  give,  does  not  extend  to  checks  drawn 

individually  by  himself,  369. 
cashier  of  bank  has  power  to  bind  bank  by,  370. 
and  if  there  are  no  funds  in  bank,  bank  will  be  liable  to  a  bona  tide  holder 

370. 
takes  effect,  when  redelivered  to  holder,  216. 

CHECKS, 

defined,  8. 

presupposes  funds  of  drawer  in  hands  of  drawee,  8. 

in  form  that  of  an  inland  bill,  8. 

acceptance,  8. 

certification,  8. 

is  usually  payable  forthwith,  80. 

post-dated,  80. 

is  equivalent  to  a  bill  of  exchange,  80. 

in  England  it  should  be  stamped,  SO. 

is  not  entitled  to  grace,  80. 

space  negligently  left  for  amount,  187  n. 

English  and  American  Stamp  Acts,  209. 

CLERGY, 

disabilities  of,  as  panics  to  commercial  paper,  246. 

COIN, 

when  necessary  in  payment,  98. 

a  note  or  bill  payable  in.  '.'s. 


656  INDEX. 

Reference  is  to  Sections. 

COLLATERAL  AGREEMENTS, 

See    Additional    Stipulations  —  Attorney's    Fees  —  Contemporaneous- 
Agreements. 

COLLATERAL  SECURITY, 

mention  of,  in  note  or  bill  not  equivalent  to  a  condition,  92. 
memoranda  as  to  collaterals,  196. 
recitals  of  collateral  security  in  a  bill,  202. 
agreement  for,  does  not  enure  to  a  subsequent  holder,  202. 
assignment  by  the  husband  of  his  wife's  choses  in  action  as,  322. 
See  Additional  Stipulations. 

COMMERCIAL  LAW, 

is  the  lex  mercatoria  or  common  law  of  merchants,  1. 
is  of  more  universal  authority  than  the  common  law  of  England,  1. 
in  Indiana  a  note  is  not  governed  by  the,  unless  payable  at  a  bank  in  that  State,. 
128. 

COMMERCIAL  PAPER, 

includes  what,  1. 

its  principles  are  now  extended  to  due  bills,  certificates  of  deposit  corporation, 
bonds,  &c,  1. 
payable  to  bearer,  possession  carries  with  it  prima  facie  ownership,  391. 
power  of  corporations  to  make,  328  et  seq. 

municipal  corporations  to  make,  336  et  seq. 
See  Rills  op  Exchange— Foreign  Bills— Inland  Bills. 

COMMISSIONERS, 

drafts  signed  by,  as  such  are  individually  liable,  443. 

COMMON  LAW, 

presumption  as  to,  34. 
not  presumed  to  govern  in  Texas,  34. 
nor  in  Russia,  34  n. 

CONDITION, 

destroys  negotiability,  92. 

wiiat  amounts  to  a,  92. 

what  does  not,  93. 

American  statutes,  92  n. 

attorney's  fees,  92  n,  93  n,  205,  206. 

must  be  expressed,  94. 

may  be  expressed  in  collateral  mortgage,  94. 

cannot  be  proved  by  parol  evidence,  94. 

unconditional  renewal  not  affected  by  condition  in  the  original  note,  94. 

effect  of  subsequent  performance,  95. 

an  action  will  lie  on  proof  of  the  happening  of  the,  95. 

and  it  may  be  declared  on  as  a  note,  95. 

the  performance  of  the  condition  must  be  shown  before  a  recovery,  9' 

what  constitutes  performance  is  a  question  of  fact,  95,  229. 

when  the,  is  repugnant,  95. 

wager  on  election,  95 

as  to  time  of  payment,  111,  112. 

"when  able,"  "when  in  funds,"  &c,  111. 


INDEX.  657 

Reference  is  to  Sections. 

CONDITION— Continued. 

the  contemporaneous  memoranda  is  part  of  the  note,  191. 

alteration  of,  avoids  the  note,  191. 

contemporaneous  agreement  for  discontinuance  of  a  certain  suit  is  not,  199. 

delivery  upon,  227. 

other  signatures  no  defense  at  the  suit  of  a  bona  fide  holder,  227. 

as  a  defense,  228. 

expressed  in  indorsement  renders  note  non-negotiable,  229. 

when  payee  knew  of  the  condition,  relief  given  to  surety  in  equity  and  note  can* 

celed,  229. 
implied  from  bill  of  lading  attached  to  note,  229. 
waived  by  indorsement  of  compromise,  229. 

CONFLICT  OF  LAWS, 

United  States — questions  of  the,  frequently  arise  in,  20. 

the  States  are  foreign  to  each  other,  20. 

interstate  bills  are  foreign  bills,  20. 

drawing,  acceptance,  indorsement,  &c.,  are  distinct  contracts,  20. 

The  place  of  contract  : 

governs  except  when,  21. 

controls  the  liability  of  the  maker  of  a  note,  21. 
drawer,  21. 
acceptor,  21. 
surety,  21. 

formalities  of  execution,  21. 
validity,  22. 
effect,  22. 
how  ascertained,  22. 
knowledge  and  intention  presumed,  23. 
delivery  fixes  place  of  contract,  24. 
controls  place  of  date,  24 

controls  place  of  drawing  a6  to  capacity  of  married  woman,  24. 
determines  when  action  must  be  brought,  24  n. 

if  surety,  after  indorsing,  returns  it  to  the  place  where  it  was  orginally 
executed  and  dated,  his  indorsement  is  controlled  by  the  law  of  that 
place,  25. 
the  contract  of  the  drawer  is  governed  by  the  law  of  the  place  of  draw- 
ing when  no  place  of  payment  is  expressed,  32. 
so  of  damage  and  interest,  32. 
legality  of  usury  laws,  32. 
acceptor's  liability,  33. 
an  indorsement  is  governed  by  the  law  of  the  place  of  the  residence  of 

the  holder,  33. 
an  intention  to  make  it  payable  at  the  residence  of  the  makers  and 

indorsers  may  be  presumed  from  circumstances,  33. 
and  then  it  is  subject  to  the  law  of  the  indorsees  own  residence,  33. 
place  of  contract  governs  capacity  of  parties,  35. 
transfer  of  note  by  executor  or  administrator,  35. 
form,  36. 
acceptance  and  indorsement,  36. 

2b 


658  INDEX. 

Reference  is  to  Sections. 

CONFLICT  OF  LAWS— Omtirmcd. 

necessity  for  a  stamp,  30. 

nature  and  interpretation,  37. 

decisions  of  foreign  courts  when  binding  upon  courts  of  otbr     juriadit. 

tions,  37. 
governs  liability  of  drawer,  38. 
surety,  38. 
indorsement,  38. 
as  to  diligence  necessary,  38. 
determines  who  is  a  bona  fide  holder,  38. 
and  what  defenses  are  available,  38,  50. 
governs  validity,  40. 
legality  of  consideration,  40. 
usury,  43,  44,  45,  46. 
when  governs  negotiability,  47. 
negotiability,  how  affected  by  lex  fori  47. 
governs  transfer,  48. 
transfer  by  executor,  49, 
grace,  51. 
demand,  52. 
protest,  52. 

notice  of  dishonor,  52. 
insolvent's  discharge,  58. 
payment,  57. 

exemptions  from  levy,  57. 
foreign  statutes  as  to,  59. 

Lex  fori  : 

governs  remedy,  53. 

limitation  of  actions,  54. 

parties,  55. 

procedure,  55,  59. 

evidence,  55. 

defenses,  56. 

set-off,  56. 

discharge,  57. 

payment,  57. 

accommodation  indorsement  controlled  by  the  place  of  delivery,  25. 

so  of  an  acceptance,  25. 

official  bonds  are  considered  as  executed  at  the  seat  of  government.  25. 

are  not  subject  to  local  law,  25. 

date  indicates,  26. 

situation  of  mortgaged  land,  27. 

residence  of  party,  21,  27. 

place  of  business  preferred  to  residence,  27. 

The  place  of  payment  : 

controls  place  of  contract,  28. 

reference  to  expressed,  place  presumed,  28. 

knowledge  of  the  law  of  that  place  presumed,  28,  30. 


INDEX.  659 

Reference  is  to  Sections. 

CONFLICT  OF  LAWS— Continued. 

governs  validity,  28. 
nature,  28. 
obligation,  28. 
interpretation,  28. 
parties  may  stipulate  by  what  law  to  be  governed,  28. 
what  plaee  intended  by  blank  is  a  question  of  fact,  28  n. 
partial  performance  in  several  places,  28. 
governs  contract  of  maker,  28,  29. 
drawer,  28. 
acceptor,  28. 
indorser,  29. 
determines  interest,  30. 
usury,  30. 
grace,  31,  51. 
currency,  31. 

the  addition  of  words,  whether  material,  31. 
necessity  of  notice  on  non-acceptance,  31. 
notice  of  dishonor,  31. 
sufficiency  of  protest,  31. 
what  is  the  place  of  payment,  33. 
presumption  from  date,  33. 
mortgaged  lands,  33. 
parol  evidence  of  special  place  inadmissible  if  none  expressed,  33. 
presumption  from  drawee's  address,  33. 
place  of  acceptance,  33. 
residence  of  acceptor,  33. 

Lex  loci  rei  sitae: 

as  to  usury,  27,  45. 
situs  of  landed  security. 

Lex  loci  solutionis  : 

governs  liability,  39. 

rate  of  interest  if  none  is  expressed,  41. 

damages,  42,  56. 

exchange,  42,  56. 

currency,  42,  56. 

usury,  46. 

when  it  governs  negotiability,  47. 

demand,  52. 

protest,  52. 

notice  of  dishonor,  52. 

discharge,  57. 

Presumptions  as  to  foreign  laws,  34. 
of  common  law,  34. 
lex  mercaloria,  3-L 
as  to  foreign  rate  of  interest,  34. 
will  not  presume  usury,  34. 
n«>r  that  note  was  made  on  Sunday,  34. 


660  INDEX. 

Reference  is  to  Sections. 

CONFLICT  OF  LAWS— Continued, 

nor  of  the  infancy  of  the  maker,  34. 
damages,  34. 
days  of  grace,  84. 
action, 
negotiability  of  bonds,  34. 

CONSIDERATION, 

necessity  for  a,  15. 

how  expressed,  15,  178. 

usually  by  the  words  "  value  received,"  15,  178. 

between  whom,  178. 

presumption  of,  15. 

accommodation  is  a  sufficient,  15. 
availability  of  defense  governed  by  what  law,  38,  56. 
sufficiency  and  legality  of,  determined  by  what  law,  40. 
recitals  of  consideration  to  principal,  prima  facie  contract  of  principal,  141. 
that  fact  alone  is  insufficient,  141. 
bearer  prima  facie  holder  for  value,  159. 

"value  received"  not  necessary,  159. 
the  onus  is  on  the  holder  to  show  that  he  paid  value  for  it  when  there  is  neither 

drawee  named  nor  a  recital  of  "  value  received,"  162. 
"  value  received  "  sufficient  for  guaranty  and  to  satisfy  the  Statute  of  Frauds,  17S. 
in  a  non-negotiable  note  does  not  necessarily  import  a  cash,  178. 
not  necessary  to  commercial  paper,  178. 

at  common  law,  all  commercial  paper  implies  a,  without  "  value  received,"  178. 
though  delivered  in  a  sealed  envelope,  178. 
as  between  indorsee  and  maker,  178. 

is- not  implied  from  the  signature  of  a  new  maker  added  after  delivery   178. 
nor  in  Pennsylvania  to  a  sealed  order,  178. 
expressed  by  other  words,  178  n. 

note  with  "  value  received  "  proved  under  common  counts,  178  n. 
American  statutes,  178. 
foreign  statutes,  179. 

"  value  received  "  not  necessary  to  negotiability,  180. 
full  expression  of  does  not  affect  negotiability,  180. 
should  be  averred  in  an  assignment  without  recourse,  180. 
special  consideration  averred  should  be  proved,  180  n. 
want  of  may  be  shown,  notwithstanding  the  words  "  value  received"  in  the  note 

180. 
the  onus  of  proving  want  of  is  on  the  defendant,  180. 
may  show  usury,  notwithstanding  the  words  "value  received,"  180. 
expression  of  the,  in  the  memoranda,  195. 
failure  of  may  be  shown  by  contemporaneous  agreement,  199. 
recitals  of  do  not  affect  negotiability,  203. 

executed,  203. 
executory,  203. 
recitals  to  indorser  after  delivery,  216. 

married  woman's  contract  and  subsequent  promise  after  husband's  death,  293. 
recitals  of,  not  conditions,  293 


INDEX.  661 

Reference  is  to  Sections. 

CONSIDERATION— Continued. 

illegality  of,  when  a  defense  against  a  bona  fide  holder  of  partnership  note,  411. 
to  render  an  agent  liable  as  a  guarantor  to  his  principal  of  paper  so  indorsed  by 
him,  consideration  for  such  liability  is  necessary,  384. 

CONTEMPORANEOUS  AGREEMENTS, 
are  part  of  the  paper,  197,  198. 

effect  of,  197,  198. 
collateral  mortgage  securing  several  notes,  197. 

extending  maturity,  197. 

exempting  other  property,  197. 

explaining  payer's  intentions,  197. 

renders  note  contingent,  198. 

it  must  be  between  the  same  parties,  199. 

to  show  failure  of  consideration,  199. 

cannot  be  used  to  contradict  or  defeat  a  note,  199. 
in  Colorado  inadmissible  as  a  defense  unless  in  writing,  199. 

COPIES, 

of  foreign  bills  not  generally  used  in  England  and  United  States,  242. 
more  common  on  the  continent  of  Europe,  242. 
may  be  substituted  for  original,  242. 
a  protest  may  be  made  on,  242. 
foreign  statutes,  243. 

See  Foeeign  Bills. 

CORPORATIONS, 

capacity  to  take  bill  or  note  determined  by  lex  loci  contractus,  35. 
lex  fori  requiring  license,  35. 

execution  by  officer,  139. 

corporation  indicated  by  "  in  behalf  of,"  "  on  account  of,"  "  for  the  um 
of,"  "  by  order  of,"  &c,  139. 

"  charging  to  account  of,"  "  charge  as  ordered,"  &c,  140. 

Signature  by  officer,  135  et  seq. 

where  the  promise  is  in  the  name  of  the  principal,  135. 

for  illustrations,  see  135. 
corporation's  seal  as  evidence  of  corporate  act,  135,  138. 
principal  named  in  instrument,  135. 

signature,  135,  146. 

Principal  named  in  agent's  official  title,  136,  137. 
for  illustrations,  see  136. 
in  the  instrument,  136. 

for  illustrations,  see  136. 
in  the  signature,  137. 

for  illustrations,  see  137. 
principal  indicated  by  stamped  paper,  138. 
or  dated  at  company's  office,  138,  140. 
principal  indicated  by  recital  of  consideration  moving  to  it,  141. 
for  illustrations,  see  141. 


662  INDEX. 

Preference  is  to  Sections. 

CORPORATIONS— Continued, 

Intention  shown  by  form  of  promise,  142. 
for  illustrations,  see  142. 
as  "  I  promise,"  142. 
"  we  or  either  of  us  promise,"  143. 
"jointly  or  severally,"  143. 
"  for  ourselves  and  our  successors,"  143  n. 
principal  indicated  by  agent's  promise  "as"  such,  144. 

for  illustrations,  see  144. 
principal  indicated  as  acceptor  or  indorser  by  drawee's  or  payee's  name, 
145. 

for  illustrations,  see  145. 
foreign  statutes,  146. 

parol  evidence  to  charge  or  discharge,  147. 

bill  drawn  by  one  officer  on  another  officer  of  the  same  corporation,  154 
corporate  authority  to  agent,  367. 
may  be  implied,  367. 
officers,  368  et  seq. 

See  Agency — President — Secretary — Treasurer. 

General  corporate  powers,  327. 

have  only  such  powers  as  are  expressly  conferred  by  charter,  327. 

or  which  belong  to  them  incidentally  and  by  necessary  implication,  827. 

at  common  law  could  only  contract  under  seal,  327. 

otherwise  now  beyond  dispute,  327. 
may  make  a  negotiable  note  under  corporate  seal,  327. 

Power  to  execute  bills  and  notes,  328. 

formerly  coidd  not  make  a  bill  or  note,  327. 

Mr.  Justice  Byles  says  requires  a  special  authority,  328. 

where  express  authority  has  been  given  for  a  particular  purpose,  and 
executed  for  a  different  and  other  purpose,  328. 

the  law  implies  that  the  corporation  is  subject  to  all  ordinary  remedies 
against  it,  328. 

cannot  give  a  valid  note  to  its  acting  trustee,  385. 

corporations  for  the  purpose  of  trade  may  issue  notes  and  bills  like  natu- 
ral persons,  328. 

Statute  of  Anne  expressly  confers  this  power,  328. 

express  power  is  not  necessary  to  issue  bills  and  notes  as  incident  to  the 
business  of,  328. 

so,  of  a  municipal  corporation,  328  n. 

and  of  corporation  bonds  for  money  borrowed  for  corporate  purposes, 
328  n. 

a  corporation  for  the  erection  of  public  works  has  no  such  power,  328. 

so  of  a  railroad  company  in  England,  328. 

so,  as  to  receiving  and  transferring  notes,  328  n, 

otherwise  in  the  United  States,  328. 

so,  in  United  States  a  mill  company  may  make,  328. 
religious  corporation,  328. 
insurance  company,  328. 


INDEX.  663 

Reference  is  to  Sections. 

COBPOK  ATIONS— Continued. 

but  not  where  the  discounting  of  the  note  was  no  part  of  the  company's 
business,  328  n. 

mining  companies,  328. 
manufacturing  companies,  328. 
canal  companies,  328. 
building  associations,  328. 

a  society  for  the  erection  of  a  public  monument,  328  n. 
a  turnpike  company  328  n. 

but  cannot  make  a  bill  or  note  which  is  foreign  to  its  business,  329. 
a  railroad  company  cannot  consolidate  with  another  line  and  give  a  note 
for  the  purchase  of  a  steamboat  to  be  used  to  connect  the  lines,  329  n. 
will  not  be  presumed  to  have  been  executed  in  its  corporate  business, 

329. 
power  to  make  bills  or  notes  co-extensive  with  power  to  contract  debts, 

329. 
the  power  to  borrow  money  includes  the  power  to  transfer  a  bill,  329. 
or  to  transfer  as  collateral  a  promissory  note,  329. 
or  to  make  an  "obligation  for  its  repayment  in  any  form  not  expressly 

forbidden  by  law,"  329. 
an  insurance  company  to  pay  losses,  329  n. 

may  receive  a  note  for  a  subscription  of  stock 
329  n. 

Power  to  take  and  transfer  bills,  330. 
may  receive  a  bill  for  a  debt,  330. 

notwithstanding  a  prohibition  against  trading  in  notes,  330  n. 
and  by  implication  may  transfer  it,  330. 
and  such  power  may  be  inferred  from  the  possession  of  the  paper  by  the 

corporation,  330. 
power  to  "  sell  and  convey  "  all  property  implies  a  power  to  indorse  a 

bill,  330. 
may  be  a  good  transfer  though  it  is  ultra  vires,  330. 
and  not  binding  as  an  indorsement,  330. 
the  trustees  of  an  academy  authorized  to  procure  subscriptions  may 

take  a  note  for,  330. 
a  corporation   having   no  power  to  transact  business  in  a  State  may 

receive  a  note  there  for  a  subscription  to  its  stock,  330. 
but  cannot  sue  on  it  without  conforming  to  the  State  laws,  330  n. 
may  transfer  such  a  note  received  for  a  stock  subscription,  330. 
and  this  will  be  valid,  though  stock  may  never  have  been  delivered, 

330  n. 
or  for  insurance  made  by  it,  330. 

an  express  statutory  authority  should  be  expressly  construed,  330. 
if  authorized  to  receive  a  note  "  payable  within  twelve  months  from 

date,"  will  not  authorize  the  taking  of  a  note  payable  twelve  months 

from  date,  330. 
but  the  defect  may  be  cured  by  a  valid  renewal,  330  n. 
a  bank  which  has  discounted  and  owns  a  note  may  transfer  it,  331. 
even  though  it  has  been  dishonored,  331. 


664  INDEX. 

Reference  is  to  Sections. 

CORPOKATIONS— Continued. 

and  though  a  subsequent  statute  prohibits  such  transfer,  331. 

and  in  Massachusetts  may  transfer  a  note  within  three  years  after  the 
expiration  of  its  charter,  331. 

the  National  Banking  Act  gives  no  authority  to  purchase  notes,  331. 

and  can  acquire  title  to  such  paper  only  by  discount,  331. 

in  Minnesota  a  power  to  discount  does  not  include  a  power  to  buy,  331  n. 

a  prior  indorser  cannot  question  the  capacity  and  title  of  the  bank,  331. 

so,  one  giving  his  note  to  a,  cannot  question  the  organization  of  the  com- 
pany, 331. 

as  a  matter  of  defense,  331. 

especially  if  given  in  payment  of  a  stock  subscription,  331  n. 

and  the  maker  of  the  note  when  transferred  to  a  bona  fide  holder  is 
estopped  from  denying  the  existence  of  the  corporation,  331. 

so,  maker  of  a  note  to  a  foreign  corporation  cannot  set  up  that  it  had  no 
power  to  transact  business  in  the  State  where  the  note  was  given,  331. 

so  of  an  accommodation  note  afterwards  renewed  and  transferred  to  a 
bona  fide  holder,  331. 

Hanking  powers,  332. 

must  be  expressly  conferred,  332. 

cannot  be  inferred  from  authority  to  "hold,  sell,  grant  and  dispose  of" 

real  or  personal  estate  "  by  mortgage  or  in  such  other  manner  as  they 

shall  deem  most  proper  for  the  best  interests  of  the  corporation,"  332. 
nor  from  an  authority  "to  buy  and  sell  drafts  and  bills  of  exchange," 

332. 
taking  a  note  from  the  corporation  treasurer  in  settlement  of  his  mis- 

applicatioH  of  its  funds  is  not  within  the  prohibition  of  the,  332  n. 
in  New  York  certificates  of  deposit  bearing  interest  and  redeemable 

after  thirty  years  are  prohibited  by,  332. 
so  post  notes,  332. 
but  certificates  of  deposit  not  used  nor  intended  to  circulate  as  money 

are  not,  332. 
discounting  notes,  prohibited  by  New  York  Eevised  Statutes,  is  not 

conferred  upon  a  trust  company,  332. 
nor  has  a  savings  bank  power  to  discount  commercial  paper,  332. 
the  statute  does  not  include  non-negotiable  notes  and  drafts,  332. 
the  statutory  prohibition  extends  to  the  power  of  discounting  notes,  332. 
and  of  taking  a  note  for  a  loan  and  deducting  the  interest  in  advance. 

332. 
though  a  savings  bank  charter  authorizing  investments  in  public  stocks 

and  "  other  security  "  includes  in  its  authority  loans  on  commercial 

paper,  332. 
do  not  extend  to  foreign  corporations  acting  in  their  own  State,  332. 
in  England  all  corporations  except  the  Bank  of  England  are  prohibited, 

332. 
by  Statute  of  39  and  40  Geo.  III.  c.  28  ?  15,  332. 
so  are  all  partnerships  of  more  than  six  persons,  332. 
does  not  apply  to  commercial  firms  of  more  than  six  partners,  332  a 


index.  665 

Reference  is  to  Sections. 
CORPORATIONS— Continued. 

if  doing  business  more  than  sixty-five  miles  from  London,  not  prohib- 
ited, 332. 
and  if  for  more  than  £50,  may  be  payable  in  London,  332. 
may  not  do  business  as  bankers  in  London,  332. 

but  cannot  issue  bill  or  note  payable  in  less  than  six  months  from  their 
date,  332. 

not  void  though  prohibited,  332. 

valid  in  the  hands  of  a  bona  fide  holder,  332. 

Loans  by,  333. 

has  no  power  to  loan  its  funds,  333. 

and  receive  commercial  paper  for  payment,  333. 

but  it  may  recover  the  money  loaned  in  an  action  for  moneys  had  and 

received,  333  n. 
if  authorized  by  charter  to  advance  money  on  goods  may  accept  a  bill 

drawn  against  a  consignment  to  be  made,  333. 
if  authorized  to  receive  note,  but  forbidden  to  exercise  banking  powers, 
a  note  transferred  to  it  will  be  presumed  to  have  been  taken  lawfully 
in  the  course  of  business,  333. 
one  borrowing  money  from,  cannot  question  its  power  to  lend,  '■>■'>'■). 

in  his  own  defense,  333. 
so,  of  a  trust  deed  made  in  violation  of  the  National  Bank  Act  333  n. 
nor  can  one  who  makes  a  note  to  a,  at  the  suit  of  the  indorsee  question 
its  power  to  indorse,  333. 
accommodation  paper,  334. 

See  Accommodation  Paper. 
may  exceed  its  power  in  general,  334. 
or  in  some  special  instance,  334. 
ultra  vires  limited  in  its  meaning  to  an  absence  of  power  in  a  special  inslance. 

334. 
and  not  within  the  usual  scope  of  the  corporation's  ordinary  business  and   power, 

334. 
presumption  of  validity,  335. 

See  Municipal,  Corporations — Presumptions. 
payee's  incorporation  admitted  by  making  bill  or  note,  244. 
may  be  an  alien  enemy,  248. 

See  Bona  Fide  Holder — Estoppel — Evidence — Name. 

CORPORATION  BONDS, 
what,  12. 

negotiable,  12,  70,  74,  336. 
how  far  commercial  paper,  12,  336. 
not  subject  to  grace,  12. 
protest,  12. 

notice  of  dishonor,  12. 

to  the  statutes  providing  for  special  actions  on  bills  or  notes.  12 
not  necessarily  a  specialty,  74. 
when  negotiable  is  equivalent  to  a  promissory  note,  327. 

is  subject  to  defenses  in  hands  of  bona  fide  holder,  327. 

when  not  subject  to  defenses  in  hands  of  a  bona  fide  holder,  336. 


666 


INDEX. 


Reference  is  to  Sections. 

COUNTIES, 

when  not  authorized  to  create  a  debt  and  issue  bonds,  342. 

bonds  of,  given  for  the  stock  of  a  railroad  company,  when  estopped  from  setting. 
up  defense  that  the  road  was  not  completed  within  time  specified,  345. 

COUPON  BONDS, 
what,  12. 

how  transferable,  12. 
have  some  of  the  incidents  of  a  negotiable  note,  12,  74  n. 

when  negotiable,  91,  336. 
detached  and  payee  not  named,  not  negotiable,  150. 
negotiable  though  detached,  91,  159. 
transferable  by  delivery,  159. 
a  power  to  pay  by  "certificates  of  loan"  is  equivalent  to  a  power  to  give,  341.. 

COVERTURE, 

See  Married  Women. 

CURATOR, 

added  to  indorser's  signature  is  not  notice  of  agency,  388. 

CURRENCY, 

what  is,  99. 

payable  in,  99. 

negotiable,  99. 

of  New  York,  Mississippi,  Kentucky,  &c,  99. 

not  explainable  by  parol  evidence,  103. 

determined  by  lex  loci  solutionis,  31,  42,  56. 

CURRENT  BILLS, 

payable  in,  100. 
negotiable,  100. 

CURRENT  FUNDS, 
what  are,  99. 
payable  in,  99. 
negotiable,  99. 

of  Pittsburgh,  New  York,  &c,  99. 
not  explainable  by  parol  evidence,  103. 


D. 

DAMAGES, 

liability  of  drawer  for,  determined  by  lex  loci  contractus,  32,  39,  42,  56. 

for,  is  determined  by  the  law  of  the  place  where  the  bill  wa» 
drawn,  21  n.,  32. 
so  of  acceptor's  liability  for,  33. 
interest,  32. 
usury,  32. 
presumption  as  to  foreign  law  of,  34. 
note  payable  in  goods,  101. 
statutory,  19. 

special  damages  include  re-exchange,  19. 
See  Exchange. 


ixdex.  667 

Reference  is  to  Sections. 

DATE, 

when  necessary,  24,  75. 

includes  both  time  and  place,  75. 

position  on  paper  immaterial,  75. 

English  statutes,  75,  81. 

American  statutes,  75. 

foreign  statutes,  82. 

blank,  76, 

omission,  76. 

ante-dating,  76,  79. 

after  dissolution  of  partnership,  431. 

post-dating,  79. 

parol  evidence  to  explain,  77,  78. 

governed  by  delivery,  77 

mistake  in,  78. 

designating  the  place  in  the,  81. 

prima  facie  maker's  residence,  81. 

indorsers,  81. 
evidence  as  to  place  of,  81. 
indorsement,  82,  224. 
notice  of  protest,  81. 
controlled  by  place  of  delivery,  24, 
prima  facie  place  of  contract,  26. 
conclusive  in  favor  of  a  bona  fide  holder,  26,  44. 

presumption  that  if  dated  at  a  certain  place  was  made  and  payable  there,  33. 
prima  facie  place  of  payment  of  maker's  residence  or  place  of  business,  33. 
acceptance,  83,  224. 

payment  is  reckoned  from  the  time  of  its,  83. 
presumed  to  have  been  accepted  on  its,  83. 
parol  evidence  admissible  to  explain,  83. 
alteration  of,  84. 

need  not  be  averred  in  pleading,  84. 
in  notice  of  protest,  84  n. 
affects  Statute  of  Limitations,  85. 

a  note  payable  "from  date,"  &c,  how  reckoned,  110,  229. 
when  from  delivery,  224. 
not  prima  facie  place  of  payment,  124. 

dated  at  the  office  of  a  corporation,  as  evidence  of  corporate  act,  138,  140. 
blank  may  be  filled,  186. 

partial  omission  by  mistake  may  be  supplied,  186. 
omission  of,  not  necessarily  a  blank,  186. 
parol  evidence  inadmissible  to  supply,  186  n. 
presumably  delivered  at,  224. 

before  maturity  if  no  date  expressed,  224. 

on  Sunday,  225. 
signed  and  dated  on  Sunday  is  not  evidence  of  delivery  on  that  day,  225. 
on  Sunday  acceptance  prima  facie  not  the  same,  225. 
parol  evidence  is  admissible  to  show  delivery  on  another  day,  226. 
prima  facie  a  foreign  bill,  235. 
See  Acceptance. 


668  INDEX. 

Reference  is  to  Sections. 

DEATH, 

no  delivery  after,  221. 
dissolution  of  partnership  by,  434. 

DECEASED  PERSON, 
cannot  be  payee,  150. 

name  subsequently  used  in  business,  .150. 
indorser  of  such  a  note  liable  to  a  bona  fide  holder,  150. 
Kentucky  statute,  150  n. 
where  a  bill  has  been  indorsed  by  an  agent  to  his  principal  residing  abroad,  in 
ignorance  of  his  death,  his  administrator  may  bring  suit,  as  if  made  to  him, 
150. 

DEFENSES, 

admissible  against  assignee  of  sealed  instrument,  70. 
ante-dating  not  a  defense  in  the  hands  of  bona  fide  holder,  76. 
against  a  bona  fide  holder  when  "  given  for  a  patent  right,"  86  n. 
agreement  for  payment  in  Confederate  currency,  102  n. 
tender  in  cotton  on  bill  payable  in  "  dollars,"  102. 

authority  to  fill  blank  exceeded,  no  defense  at  suit  of  bona  fide  holder,  105,  181. 
so  against  indorser,  105  n. 
and  surety,  105  n. 
cannot  show  relation  of  parties  as  against  a  bona  fide  holder,  149. 
agreement  not  to  sell  the  note  not  a,  176. 

non-negotiable  note,  the  indorsee  or  assignee  takes  subject  to,  177. 
negligence  in  signing  bill  by  mistake  for  contract,  181. 
adding  a  co-surety  other  than  the  one  intended  on  a  renewal  note  not,  at  suit  of  a 

bona  fide  holder.  185. 
usury,  inadmissible  against  named  payee,  subsequent  holder  filling  blank  payee, 

185. 
omission  of  a  stamp  as  a,  211. 
non-cancellation  of  stamp,  212. 

omission  of  stamp  recovery  on  original  consideration,  215. 
delivery,  omission  no  defense  against  a  bona  fide  holder  if  payable  to  bearer,  217, 

220. 
though  partially  and  negligently  canceled,  217. 
indorser  may  contest  bona  fide  holder,  217. 

by  mistake  and  negligence  no  defense  against  a  bona  fide  holder,  220. 
stolen  instrument  defense,  220. 
conditional  delivery,  228. 
subsequent  condition  no  defense,  229. 
escrow  no  defense  at  suit  of  bona  fide  holder,  230. 
fraudulent  diversion  defense  in  hands  of  a  bona  fide  holder,  230. 
is  controlled  by  the  law  of  the  place  of  contract,  38. 
failure  of  consideration  may  be  shown  under  the  law  of  the  place  of  contract,  38. 

Lunacy,  257. 

rule  not  to  "stultify  himself"  discarded,  257. 
when  admissible  against  a  bona  fide  holder,  257. 
incapacity  of  indorsee  when  defense  for  maker,  257  n. 
subsequent  insanity  of  maker  no  defense,  260. 


INDEX.  . 669 

Reference  is  to  Sections. 

DEFEASES— Continued. 

Drunkenness,  262. 

when  a  defense,  262. 

no  defense  against  a  bona  fide  holder,  262. 

consideration  must  he  returned,  263. 

Infancy : 

personal  to  infant  or  his  representatives,  272,  278. 
admissible  against  all  holders,  278. 
not  in  favor  of  joint  makers,  278. 
or  of  subsequent  indorsers,  278. 

Coverture,  294. 

personal  to  married  woman  or  her  representative,  294. 
indorser  cannot  set  up  coverture  of  the  maker  though  holder  took  it 
with  knowledge,  294. 
nor  the  guarantor,  294. 

nor  the  second  indorser  that  the  first  indorser  was  a  married  woman, 
294. 
coverture  of  indorser  no  defense  to  drawer,  294. 
nor  is  the  coverture  of  drawer  or  indorser  a  defense  to  acceptor,  294. 
nor  can  the  drawer  of  a  bill  payable  to  a  married  woman  question  her 

right  to  receive  payment  of  it,  294. 
admissible  against  wife's  indorsee  (between  husband  and  wife),  316. 
affected  by  survivorship  to  wife,  325. 

By  municipal  corporations,  343  et  seq. 
unlaiuful  issue,  343. 

debts  unlawfully  contracted  by,  are  not  binding  on,  343. 

county  warrants  issued  without  legal  authority  is,  343. 

or  not  in  the  form  prescribed  by  law,  343. 

so  of  a  municipal  bond  issued  without  authority,  91,  343. 
though  negotiable  in  form,  343. 

so  of  a  municipal  warrant,  389. 

even  at  the  suit  of  a  bona  fide  holder,  389. 

and  though  payable  to  bearer,  389. 

especially  when  they  are  made  payable  out  of  some  particular  fund, 
specifying  a  road  tax  or  other  public  fund,  389. 

the  original  want  of  authority  is  available  against  all  holders,  343. 

and  the  fact  that  holder  is  a  purchaser  in  good  faith  and  for  value  before 
the  maturity  of  the  bond  does  not  preclude  such,  343. 

unless  the  acts  of  its  officers  or  agents  are  by  statute  made  conclusive 
upon  it,  343. 

a  holder  of  a  draft  issued  by  a  town  in  excess  of  its  powers  takes  it  witli 
notice  of  the  town  charter  and  all  limitations  and  powers  contained  in 
it,  343. 

but  when  the  legislative  authority  is  to  be  exercised  on  certain  condi- 
tions and  these  are  not  recited  in  the  bond,  the  town  cannot  avail 
itself  of  a  failure  to  comply  with  them  as  a,  against  a  bona  fide  holder, 
343. 


670 


INDEX. 


Reference  is  to  Sections. 

DEFENSES— Continued. 

but  a  failure  to  register  and  indorse  the  certificate  of  registry  on  it  is  a, 

343. 

in  the  hands  of  any  holder,  343. 
if  there  is  no  authority  to  issue  commercial  paper,  there  can  be  no  bona 

fide  holder  of  it,  343. 
not  bound  to  look  further  and  see  that  there  is  legislative  authority  for 

its  issue,  343. 
and  that  so  far  as  appears  by  official  certificates  all  conditions  precedent 

to  its  issue  have  been  performed,  343. 
holder  is  chargeable  with  knowledge  of  the  law  authorizing  the  issue  of 

bonds,  343. 
especially  if  this  appears  on  the  face  of  the  instrument,  343. 
and  also  with  knowledge  of  the  construction  given  to  such  statute  by  the 

courts,  343. 
also  with  all  public  records  affecting  the  authority  to  issue  the  bond,  343. 
so  chargeable  with  knowledge  of  the  location  of  a  railroad  where  bond 

given  to  aid  in  the  construction  of,  and  that  it  did  not  run  through  the 

county  giving  the  bond,  343. 
but  is  not  chargeable  with  knowledge  of  the  fact  that  a  suit  is  pending 

to  restrain  the  issue  of  such  bonds,  343. 
will  not  be  chargeable  with  constructive   notice  unless  his  failure  to 

obtain  it  was  the  result  of  culpable  negligence,  343. 
rule  by  Joynes,  J.,  343. 

Irregular  execution,  344. 

if  the  defense  is  merely  one  of  irregularity  in  executing  the  instrument, 

the  corporation  may  be  estopped  from  setting  up  such  a  defense  against 

a  holder  in  good  faith,  344. 
so  when  the  facts  have  been  determined  by  the  common  council  and  the 

bonds  have  been  issued  and  delivered  in  exchange  for  railroad  stock 

and  have  come  into  the  hands  of  a  bona  fide  holder,  344. 
common  council  cannot  afterwards  alter  the  terms  or  conditions  of  an 

ordinance  that  has  been  submitted  to  a  popular  vote  whether  the 

bonds  shall  be  issued,  344. 
but  it  is  presumed  in  favor  of  a  bona  fide  holder  that  bonds  have  been 

issued  under  the  circumstances  prescribed  by  the  enabling  statute,  344. 
See  Estoppel — Municipal,  Corporations. 

Ajents,  386  et  seg. 

Want  of  authority,  386. 

if  owner's  title  to  bill  or  note  is  defective  such  defect  will  affect  the  title 

of  any  agent  to  whom  it  is  transferred,  386. 
if  agent  has  no  authority  to  sign  for  principal  the  signature  will  amount 

to  a  forgery,  386. 
which  is  a  good  defense  at  suit  of  bona  fide  holder,  386. 
if  agent  has  exceeded  authority  is  a  good,  386. 
if  authorized  to  indorse  notes  in  joint  name  in  excess  of  the  express 

authority,  a  good  defense  in  hands  of  a  bona  fide  holder,  386. 
so  where  the  instrument  carries  notice  of  the  limit  of  authority  on  its 

face,  386. 


INDEX.  671 

Reference  is  to  Sections. 
DEFENSES— Continued. 

notes  for  bounty  for  "  value  received  in  government  military  service," 
and  the  payee,  though  enlisted,  was  never  mustered  into  service,  386. 

where  a  condition  is  a  secret  one,  as  depositing  securities  as  collateral  for 
acceptances,  not  a  good,  at  suit  of  a  bona  fide  holder,  386. 

where  signing  for  several  principals,  some  of  whom  have  not  given 
authority,  those  given  such  authority  will  be  bound,  386. 

if  an  agent  has  indorsed  a  bill  payable  to  order  without  authority,  he 
alone  will  be  liable  to  an  action,  386. 

such  a  defense  is  a  personal  privilege,  386. 

a  surety  signing  a  note  cannot  set  up  in  his  own  defense  that  principal's 
name  was  signed  without  authority,  386. 

so  where  notes  are  given  to  an  agent  in  settlement  of  losses,  which  he 
falsely  represented  himself  to  have  incurred  in  maker's  business,  it 
will  be  no  defense  to  maker  that  notes  were  given  without  knowledge 
that  his  instructions  had  been  disobeyed  by  the  agent,  386. 

but  fraudulent  representations  on  the  agent's  part  as  to  the  transaction, 
inducing  the  principal  to  give  the  notes,  will  be  a  good  defense,  386. 

the  notes  being  to  that  extent  without  consideration,  386. 

When  admissible,  387. 

if  negotiated  without  authority  by  agent  is  a  good  defense,  387. 
principal  may  have  an  action  for  the  refunding  of  the  money  obtained 

on  them,  387. 
when  indorsed  to  agent  after  maturity  and  misapplied  by  him  is  nu 

defense  against  a  bona  fide  holder,  387. 
when  misapplied  by  agent  before  maturity,  387. 
when  agent  obtains  loan  for  principal  on  usurious  terms  usury  will  not 

be  presumed  to  have  been  authorized  by  the  principal,  387. 
when  agent,  without  disclosing  his  principal,  has  purchased  a  note  from 

the  maker  at  a  usurious  rate,  such  excess  of  lawful  interest  may  be 

recovered  by  the  maker  from  the  payee,  387. 
if  A.  sells  a  bill  for  B.,  who  is  agent,  and  misappropriates  it,  and  pay-, 

over  to  B.  only  part  of  it  is  subject  to  defense  on  the  owner's  part 

arising  out  of  the  misappropriation,  387. 
although  the  agent  had  represented  the  bill  to  be  his  own  property,  387. 
if  holder  takes  it  with  knowledge  that  it  was  given  without  authority  he 

will  take  it  subject  to,  387. 
if  received  from  agent  for  a  particular  purpose  and  discounted  in  dis- 
regard of  that  purpose  is  a  good,  387. 
but  the  mere  fact  that  the  person  selling  the  note  to  the  plaintiff  was  a 

broker  is  not  sufficient  to  charge  him  with  notice,  387. 
or  subject  him  to  such  a  defense  on  the  part  of  the  owner,  387. 
where  principal  has  given  his  agent  authority  to  accept  bills  in  his 

name,  he  cannot  set  up  his  own  want  of  interest  or  the  want  of  con- 
sideration to  him,  387. 
unless  he  shows  that  holder  had  knowledge  of  the  agent's  abuse  of  his 

authority,  387. 

Notice  of  limit  of  agents  authority,  388. 

if  the  agency  is  made  to  appear,  the  principal  will  not  be  bound  beyond 
the  authority  given,  388. 


672  INDEX. 

Reference  is  to  Sections. 

DEFENSES— Qmbimmd. 

and  if  holder  has  notice  that  the   one  acting  as  agent  is  such,  he  is- 

bound  to  inquire  into  his  authority,  388. 
when  the  authority  is  expressly  conferred  in  writing  and  is  exceeded 

by  the  agent,  the  principal  will  not  be  liable,  388. 
authority  to  accept  drafts,  the  agent  "  having  evidence  in  his  possession 

of  such  purchases,"  388  n. 
"  per  procuration  "  is  sufficient  notice  of  agency,  388. 
"curator"  added  to  indorser's  signature  not  sufficient  notice  of  agency, 

388. 
when  authorized  to  accept,  the  holder  may  demand  the  production  of 

authority,  388. 
"for  my  use"  added  to  indorsement  shows  a  limited  agency,  388. 
so  "within  must  be  credited  to  A.  B."  388. 
and  in  such  case,  if  bill  transferred  by  the  agent  as  security  for  advances 

made  to  him,  may  be  recovered  in  trover  by  the  principal,  388. 

When  inadmissible,  bona  fide  holder,  390. 

want  of  authority  in  delivering  a  bill  a  note  payable  to  bearer  is  no, 
against  a  bona  fide  holder,  390. 

if  given  to  agent  to  discount  and  transferred  by  his  indorsement  and 
proceeds  misapplied,  no  defense  against  a  bona  fide  holder,  390. 

so  where  notes  are  indorsed  in  blank  to  agent  for  a  particular  purpose, 
which  has  been  disregarded  by  him,  390. 

it  makes  no  difference  in  such  case  that  agent  has  been  guilty  of  fraud 
upon  his  principal,  390. 

such  fraud  will  not  make  the  indorsement  a  forgery,  390. 

if  blank  is  filled  up  in  excess  of  authority  given,  390. 

so  of  a  note  indorsed  in  blank,  390. 

so  of  note  placed  in  the  hands  of  a  broker,  he  will  be  bound  by  his  repre- 
sentations to  a  buyer  that  it  is  good  business  paper,  390. 

and  he  cannot  afterwards  set  up  that  the  note  had  no  previous  existence 
as  a  note  and  was  purchased  from  the  broker  at  a  usurious  rate  of 
interest,  390. 

possession  of  negotiable  paper  carries  with  it  presumptively  ownership, 
391. 

and  a  bona  fide  holder  is  not  subject  to  any  defense  arising  out  of  the 
agent's  fraud  or  want  of  authority,  391. 

if  agent  draws  a  bill  on  principal  which  is  accepted  by  the  principal  foi 
the  purpose  of  obtaining  a  discount,  he  will  be  bound  by  the  agent's 
subsequent  pledge  of  it,  391. 

so  if  a  broker,  intrusted  with  a  note  for  the  purpose  of  sale  for  his  prin- 
cipal's benefit,  pledges  it  for  a  pre-existing  debt  of  his  own,  the  prin- 
cipal cannot  recover  it  from  such  pledgee,  391. 

so  if  the  agent  under  such  circumstances  transfers  it  for  the  purpose  of 
obtaining  an  indemnity  for  himself  in  another  matter,  391. 

and  this  is  so  of  municipal  bonds  made  by  a  school  district,  wliich  are 
negotiable  in  form,  and  have  been  transferred  by  the  agent  in  pay- 
ment of  his  own  debt,  391. 


INDEX.  073 

Reference  is  to  Sections. 

DEFENSES  -Continued. 

it  is  also  true,  in  general,  of  bills  and  notes  indorsed  in  blank  to  an  agent 

for  collection,  391. 
or  for  safe  keeping,  391. 

Partners  and  partnership.    * 
When  admissible,  414. 

an  indorser  of  a  note  may  avail  biinself  of  tbe,  that  the  partner  making 
it  did  so  for  his  individual  debt,  413. 

so  if  firm  note  be  given  for  individual  debt  of  one  partner,  the  firm  may 
avail  itself  of  that  defense  against  a  purchaser  of  the  note  after  matur- 
ity, 414. 

may  be  set  up  against  any  holder  who  takes  the  instrument  with  knowl- 
edge of  that  fact,  414. 

signing  individual  name  to  note  before  that  of  the  firm  is  proper  evi- 
dence in  determining  whether  the  holder  had  notice,  414. 

if,  exists  against  one  partner,  will  affect  the  rights  of  all  the  firm,  402. 

illegality  of  consideration,  when  a,  411. 

dissolution  of  firm,  when  admissible  as  a,  435. 

that  note  was  executed  by  one  partner  after  the  dissolution  of  the  firm 
is,  434, 

not  in  the  hands  of  a  bona  fide  holder,  435. 

When  inadmissible,  416. 

that  note  or  bill  was  given  for  individual  debt  of  partner  is  no  defense 
in  hands  of  a  bona  fide  holder,  416. 

immaterial  that  paper  was  given  without  the  knowledge  of  the  other 
partners,  416. 

or  that  the  proceeds  were  actually  received  and  used  by  the  partner  giv- 
ing it,  416. 

where  note  includes  part  of  debt  of  old  firm,  good  defense  by  a  new  part- 
ner against  a  bona  fide  holder,  416. 

firm  note  for  individual  debt  of  partner  by  a  firm  not  commercial  in  char- 
acter, firm  not  bound  as  against  a  bona  fide  holder,  416. 

otherwise  in  case  of  commercial  firm,  416. 

counter-claim  against  firm,  when  cannot  be  set  up  as  a,  411. 

Burden  of  proving  notice,  417. 

burden  on  the  firm  to  prove  notice  that  holder  knew  the  note  or  liill  was 
made  for  individual  debt,  417. 

so  a  new  partner,  to  avail  himself  of  the  defense  that  note  was  given  for 
debts  of  old  firm,  must  show  notice,  417. 

where  a  firm  bill  payable  to  the  order  of  the  drawer  is  drawn  by  one 
partner  on  the  firm  and  accepted  by  himself,  and  indorsed  and  nego- 
tiated in  the  firm  name,  is  sufficient  notice  that  it  was  given  for  indi- 
vidual benefit  of  such  partner,  417. 

so  where  note  made  by  one  partner  individually  and  indorsed  by  him  ic 
the  firm  name  over  the  indorsement  of  the  payee,  417. 

BO  is  a  memorandum  made  on  a  firm  note  to  the  effect  that  it  was  ,i;ivc'i: 
as  securitv  for  the  note  of  one  partner,  417. 

2s 


674  INDEX. 

Reference  is  to  Sections. 

DEFENSES— Continued. 

but  such  notice  is  not  presumed  where  note  was  made  in  name  of  one 
partner  payable  to  bis  firm,  and  indorsed  by  another  partner  in  the 
firm  name  witb  the  date  and  rate  of  interest  left  blank,  417. 

or  from  the  fact  that  these  were  filled  in  by  the  partner  using  the  note 
when  he  delivered  it  to  the  plaintiff,  4l7. 

as  between  original  parties  that  note  was  given  and  received  in  pay- 
ment of  individual  debt  of  one  partner  is  sufficient,  418. 

as  to  presumption  from  the  handwriting  of  one  partner,  418  n. 

so  taking  firm  note  in  renewal  of  note  of  individual  partner,  418. 

taking  firm  note  for  individual  debt  is  not  sufficient  notice,  418. 

is  presumptive  evidence  of  fraud,  418. 

or  gross  negligence  amounting  to  fraud,  418. 

if  circumstances  are  such  as  to  make  it  reasonable  to  believe  that  consent 
of  firm  was  given,  the  onus  is  on  the  firm  to  prove  the  fraud,  418. 

where  the  whole  paper  is  in  individual  partner's  handwriting,  418. 

so  if  note  has  been  indorsed  in  firm  name  in  a  transaction  clearly  outside 
of  firm  business,  418. 

where  firm  shows  that  paper  was  given  for  individual  debt  of  partner, 
the  onus  is  then  on  holder  to  show  that  he  is  a  bona  fide  holder,  418. 

transferring  by  one  with  knowledge  to  a  bona  fide  holder  to  cut  off 
defenses,  418. 

such  indorser  is  liable  for  the  fraud  by  him  upon  the  partner  not  con- 
senting to  the  paper,  41S. 

6uch  liability  is  not  to  the  firm,  but  to  the  partner  injured,  and  is  not  a 
right  of  action  belonging  to  the  firm  which  passes  by  a  general  assign- 
ment of  the  firm  debts,  41S. 

illegality  of  consideration,  when  a  defense  against  a  bona  fide  holder,  411 

Fraud  as  a  defense,  424. 

all  fraud  between  a  partner  and  the  holder  of  partnership  paper  will 
avoid  it,  424. 

both  as  to  the  firm  and  against  other  parties,  424. 

and  where  both  parties  to  a  transfer  are  partakers  in  the  fraud  the  trans- 
feree will  hold  such  paper  as  a  mere  trustee  for  the  firm  and  its  cred- 
itors, 424. 

will  not  render  the  paper  invalid  in  the  hands  of  a  bona  fide  holder,  424. 

misappropriation  of  money  by  partner,  424. 

discounting  the  firm  paper  and  misappropriating  the  proceeds,  424. 

a  surviving  partner  will  not  be  liable  on  a  bill  executed  by  a  deceased 
partner  and  fraudulently  negotiated  after  his  death  to  a  bona  fi<lr 
holder  by  a  clerk  of  the  firm,  who  filled  the  blank  with  a  date  prior 
to  the  death  of  the  partner,  424. 

fraud  by  a  deceased  partner,  though  his  executor  could  not  be  sued  at 
law,  he  may  be  liable  in  equity  u)  a  bone  fide  holder,  424. 

agent  for  selling  a  patent,  who  is  authorized  by  owner  to  take  notes  pay- 
able to  both  in  their  joint  names,  cannot  as  a  partner  bind  his  princi- 
pal, the  owner  of  the  patent,  by  a  fraudulent  accommodation  indorse 
ment,  424. 


INDEX.  675 

Reference  is  to  Sections. 

DEFENSES—  Continued. 

even  in  the  hands  of  a  bona  fide  holder,  424. 
pleading  fraud,  425. 
See  Pleadings. 

DEL  CREDERE, 

agents  acting  under  a,  are  liable  on  their  indorsements  to  their  principal,  384. 

DELIVERY, 

What  constitutes,  218. 
by  mail,  218. 

revocable  until  mail  leaves,  218. 
to  messenger  for  mail,  218. 
agent,  218. 

laying  on  desk  for,  218. 
putting  in  an  office  letter-box,  218  n. 
in  sealed  envelope,  218. 
in  an  envelope  among  maker's  papers  as  a  legacy,  218. 

Constructive,  219. 

by  assignee  on  agreement,  219. 

to  the  pledgee  on  arrival  of  steamer  subject  to  stoppage  in  transitu,  219 

not  necessary  to  person  in  interest,  219. 

intent  necessary,  219. 

fraudulently  taking  is  not,  220. 

writing  name  over  signature  without  intending  to  write  a  note  is  forgery 
and  not,  220. 

note  drawn  in  sport  not,  220. 

circumstances  may  be  proved  by  parol  evidence,  220. 

mistake  without  fraud,  220. 

negligence  no  defense  at  suit  of  a  bona  fide  holder,  220. 
after  maker's  death,  221. 
by  his  executor,  221. 
by  his  heir,  221. 

after  dissolution  of  a  partnership,  221. 
though  drawn  afterwards,  221. 
to  agent,  222. 

who  fraudulently  transfers  it,  222. 

in  violation  of  agreement,  222. 
joint  makers  to  one  for  discount,  222. 
to  agent  without  knowledge  of  principal,  223. 
to  an  attorney,  223. 
to  unauthorized  agent,  223. 
ratification  of,  223. 
to  parent,  223. 
to  trustee,  223. 

to  unauthorized  public  officer,  223. 
to  a  stranger,  223. 

on  loan  and  discount  refused  by  payee,  223. 
what  law  governs,  218. 


676  INDEX. 

Reference  is  to  Sections. 

DELIVEKY—  Continued. 
determines  lex  loci,  224. 
instrument  takes  effect  from,  224. 
though  after  the  date,  224. 
prima  facie  at  date,  224. 
before  maturity  if  no  date  expressed,  224. 
maturity  reckoned  from,  if  no  expressed  date,  224. 
determines  rate  of  interest  intended,  24. 
official  bonds  are  an  exception,  25. 
as  affecting  interest  and  usury,  44. 
governs  date,  24,  38,  77. 

cannot  be  postponed  until  maker's  death,  113. 
necessary  to  fill  blanks  before,  181. 
is  necessary  to  complete  paper,  216. 

indorsement,  216. 
to  an  acceptance,  216. 
taking  from  among  papers  not  a,  216  n. 
signing  not  a,  216. 

acceptance  not  complete  until  bill  is,  216. 
detention  by  acceptor  an  unreasonable  length  of  time  is,  216. 
of  certified  check,  216. 
need  not  be  specially  pleaded,  217. 
"promised"  or  "made"  implies  delivery,  217. 
presumed  from  possession,  217. 
though  payable  to  another,  217. 

among  papers  of  deceased  a  delivery  is  presumed,  217. 
if  payable  to  bearer,  non-delivery  no  defense  of  suit  of  a  bona  fide  holder,  217 

220. 
the  authority  to  fill  blanks  implied  from  a  proper  delivery,  224. 
on  Sunday,  225. 
ratification  of,  225. 
note  signed  and  dated  on  Sunday  is  not  prima  facie  evidence  that  it  was  delivered 

on  that  day,  225. 
question  for  the  jury,  225. 

when  dated  on  Sunday,  delivery  on  another  day  may  be  shown,  226. 
a  guaranty  delivered  on  Sunday,  226. 
delivery  by  agent  receiving  authority  on  Sunday,  226. 
of  goods,  226. 
in  escrow,  221,  227. 

not  to  payee,  227. 

or  payee's  agent,  227. 

deed  to  solicitor  of  grantee,  227. 

what  is  a  good  escrow,  227  n. 
conditional,  228,  229. 
defense  for  want  of,  230. 

may  be  shown  by  parol,  231. 
the  several  parts  of  a  bill  should  all  be  delivered  together,  238, 

See  Acceptance. 


INDEX.  677 

Reference  is  to  Sections. 

DEMAND, 

necessity  for,  as  against  drawer,  determined  by  the  lex  loci  solutionis,  39. 

necessary  of  a  bill  drawn  by  principal  on  his  agent,  172. 

or  by  the  directors  of  a  company  on  its  cashier,  172. 

waiver  of,  by  memoranda,  part  of  the  note,  196. 

any  part  of  a  bill  when  there  are  one  or  more  parts,  240. 

by  leaving  on  desk  not  a  sufficient,  218  n. 

bill  drawn  on  a  fictitious  drawee,  the  drawer  liable  without,  172. 

DILIGENCE, 

determined  by  the  lex  loci  contractus,  38. 
unnecessary  to  hold  drawer  of  sealed  instruments,  70. 

DISAFFIRMANCE  OF  CONTRACT, 
by  infant,  276,  277. 
married  woman,  279  n.,  283. 

DISCHARGE, 

governed  by  what  law,  57,  58. 

an  insolvent,  governed  by  lex  loci  solutionis,  58. 

DISHONOR, 
what,  18. 

notice  necessary,  18. 
when  not  necessary,  172. 

law  of  the  place  of  payment  governs  as  to  what  notice  of,  is  necessary,  31. 
See  Notice  of  Dishonor. 

DIVORCE, 

subsequent  payment  to  husband  or  wife,  321. 
transfer  by  husband  or  wife,  322. 
does  not  discharge  wife's  liability  on  joint  note,  287. 
See  Married  Women. 

DOLLARS, 

lawful  currency  of  the  United  States,  102. 

parol  evidence  admissible  to  show  Confederate  currency  intended,  102. 

DOMICILE, 

change  of,  after  execution  of  contract,  21  n. 

effect  on  question  of  usury,  27,  43. 

acceptor's  domicile  prima  facie  place  of  payment,  46. 

DRAFTS, 

See  Municipal  Warrants. 

DRAWEE, 

defined,  4. 

by  acceptance  he  becomes  the  acceptor,  4. 

and  when  no  place  of  payment  is  named  in  a  bill  it  is  payable  at  the  resilience  of 

the  drawee,  122. 
a  lawful  tender  in  such  case  can  only  be  made  to  the  holder  personally  or  at  such 

residence,  122. 


678  index. 

Reference  is  to  Sections. 

DRAWEE'S  NAME, 

should  appear  in  the  instrument,  171. 

shown  by  address,  171. 

supplied  by  acceptance,  171,  185. 

required  by  foreign  statutes,  171. 

at  common  law,  not  necessary  if  he  be  otherwise  sufficiently  designated,  171. 

when  addressed  to  a  ship,  171. 

may  be  addressed  to  one  in  a  representative  or  official  capacity,  171. 

to  a  corporation  being  misnamed,  171. 

cannot  be  addressed  to  one  person  and  accepted  by  another,  171. 

but  may  be  directed  to  A.,  "or,  in  his  absence,  to  B.,"  171. 

several  drawees  and  acceptance  by  one,  171. 

averments  on  such  an  acceptance,  171. 

blank  indorser  cannot  be  changed  to  acceptor,  171. 

may  be  addressed  "at"  instead  of  "to"  the  drawee,  171. 

in  form  of  a  note  accepted  by  a  third  person,  171. 

drawer  and  drawee  one  person,  172. 

such  an  instrument  is  a  note,  172. 

fictitious,  172. 

may  be  the  payee,  bill  valid,  172. 

may  be  payable  to  the  "order  of  the  acceptor,"  172  n. 

drawer,  drawee  and  payee  one  person  in  an  indictment  for  forgery,  172. 

by  some  foreign  law  drawer  cannot  be  drawee,  172. 

bill  drawn  by  principal  on  agent,  172. 

by  the  directors  of  a  company  on  its  cashier,  172. 

such  bill  is  equivalent  to  an  accepted  bill,  172. 

no  notice  of  non-acceptance  is  necessary  to  hold  the  drawer,  172. 

demand  necessary,  172. 

DRAWER, 

defined,  4. 

liability  regulated  by  lex  loci  contractus,  21,  32. 

when  governed  by  lex  loci  solutionis,  28,  38,  39. 

liable  to  pay  at  place  of  drawer  on  non-acceptance,  122. 

when  expressly  payable  at  residence  of  drawer  prima  facie  accommodation 
paper,  122. 
drawer — agent  of  drawee,  382. 
drawer  or  maker — agent  of  payee,  383. 

DRUNKENNESS, 

contracts  for  necessaries  binding,  263. 

an  indorsement  by  a  drunkard  for  the  payment  of  necessaries,  256  n. 
formerly  no  defense  without  fraud,  261. 
material  evidence  of  fraud,  261. 
when  intended  no  defense,  261. 
contract  repudiated  and  value  recovered,  262. 
no  defense  at  suit  of  a  bona  fide  holder,  262. 
contract  voidable,  262. 

may  be  ratified,  262. 
void  by  statute  in  some  States,  262. 


INDEX.  679 

Reference  is  to  Sections. 

DRUNK  ENNESS— CW  inued. 

no  defense  except  consideration  be  returned,  263. 
pleadings,  264. 
evidence,  264. 
burden  of  proof,  264. 

DUE  BILL, 

defined,  1 1 . 

is  negotiable  by  statute  in  some  States,  11. 
is  not  a  promissory  note  in  England,  88. 
so  in  some  of  the  United  States,  88. 
not  so  in  others,  88. 

to  "bearer"  question  for  the  jury,  88  n. 

in  Illinois  a  due  bill  "Good  for  fifty  cents,"  was  treated  ds  an  indorsement  with 
payee's  name  left  blank,  150. 

DURESS, 

wife's  note  with  recital  for  separate  benefit  invalid  against  a  bona  fide  holder,  303. 

E. 

ENDORSEMENT, 
See  Indorsement. 

ENDORSER, 

See  Indorser 

EQUITIES, 

See  Bona  Fide  Holder— Defenses — Estopped. 

EQUITY, 

may  set  aside  for  fraud  note  of  infant,  after  twenty-one,  for  supplies,  270. 
to  restrain  collection  of  infant's  note,  270. 
cancellation  of  note  for  necessaries,  270. 

and  decree  for  the  payment  of  their  reasonable  value,  270. 
infant,  when  liable  in  equity,  272. 
executor  giving  own  note  for  debt  of  the  estate,  may  be  sued  as  executor  in  equity. 

438. 
fraud  by  a  deceased  partner,  executor  of,  may  be  held  liable  in,  424. 

to  a  bona  fide  holder  for  the  amount  of  the  note  or  bill  fraudulently  given, 
424. 
an  action  by  the  principal's  indorsee  against  agent  on  an  indorsement  merely  for 

remittance,  was  restrained  by  injunction  when  the  bill  had  been  made  payable 

to  the  agent  accidentally,  the  plaintiff  proving  that  fact,  384  n. 
an  injunction  will  be  granted  to  restrain  partner  from  improperly  executing  paper 

in  firm  name  for  accommodation,  420. 
when  fraud  is  alleged  an  injunction  will  be  granted  to  restrain  the  negotiation  of 

bill  by  a  holder  for  value,  who  had  notice  that  acceptance  had  been  improperly 

given  in  the  firm  name,  425. 
administrator  may  be  compelled  in,  to  indorse  a  note  of  testator  to  complete  a 

transfer  made  by  the  testator,  442. 
when  an  administrator  de  bonis  non  may  obtain  an  injunction  against  the  assignee 

of  note  of  estate  given  by  executor  for  individual  debt,  441. 


680  INDEX. 

Reference  is  to  Sections. 

ERASURE, 

blank  implies  no  authority  to  make,  182. 

filling  in  a  bill  marked  "first,"  "second,"  &c,  is  an  alteration,  182  n. 

indorsees  name  in  blank  indorsement,  185. 

ESCROW, 

delivery  in,  227. 

maker  liable  only  on  happening  of  the  event,  227. 

cannot  be  to  the  payee  himself,  227. 

or  to  his  agent,  227. 
what  is  a  good  delivery  in,  227. 

the  holder  must  show  himself  to  be  a  bona  fide  holder,  227. 
no  defense  at  suit  of  a  bona  fide  holder,  227,  230. 
delivery  of  a  deed  in,  to  solicitor  of  grantee,  227. 
exchange  of  notes  both  delivered  in  escrow,  230. 
parol  evidence,  231. 

declarations  of  the  depositary  at  the  time  are  admissible  against  a  purchaser  after 
maturity,  231. 

"ESTATE  OF  A.," 

a  note  payable  to,  152. 

insufficient  designation  of  payee,  152. 

ESTOPPEL, 

maker  may  show  designated  bank  when  note  payable  at  bank,  such  bank  being 

fictitious,  128  n. 
maker  forging  payee's  indorsement,  161. 
forged  paper,  163. 

by  accepting  paper  drawn  by  and  payable  to  fictitious  person,  164. 
for  drawee's  honor,  not  knowing  payee  fictitious,  164. 
or  drawer's  signature  forged,  164. 
against  maker  or  drawer  as  to  payee's  capacity,  244. 
acceptor's  or  drawer's  capacity,  244. 
intended  drunkenness,  261. 
infant,  for  false  representations  not,  272. 
married  woman,  for  false  representations  not,  272,  282. 
for  fraud  married  woman's  separate  benefit,  313. 

when  firm  has  knowingly  used  proceeds  of  paper  executed  without  authority  by 
its  superintendent  it  is,  from  setting  up  such  want  of  authority,  405. 

Corporations  : 

where  a  national  bank  has  purchased  a  note  and  brings  suit  upon  it,  a 
prior  indorser  cannot  question  the  capacity  and  title  of  the  bank,  331. 

so  one  giving  note  to  a  company  is  estopped  from  setting  up  the  organi- 
zation of  the  company  as  a  defense,  331. 

so  the  maker  of  such  a  note  transferred  to  a  bona  fide  holder  is  estopped 
from  denying  the  existence  of  the  corporation,  331. 

so  the  maker  of  a  note  to  a  foreign  corporation  is  estopped  from  deny- 
ing that  it  had  no  power  to  transact  business  in  the  State  where  note 
was  given,  331 . 

one  borrowing  money  from  a  corporation  is  estopped  from  questioning 
its  power  to  lend,  333. 


INDEX.  681 

Reference  is  to  Sections. 
ESTOPPEL—  Continued. 

so  of  a  trust  deed  securing  a  loan  on  note  in  violation  of  the  National 

Bank  Act,  333  n. 
nor  can  one  who  makes  a  note  to  a  corporation,  at  suit  of  indorsee,  ques- 
tion its  power  to  indorse,  333. 
a  railroad  company  transferring  property  with  guaranty  and  receiving 
the  proceeds  is  estopped  from  setting  up  its  want  of  power,  334. 

Municipal  Corporations  : 

estoppel  by  recitals,  345. 

holder  may  rely  on  recitals  contained  in  bonds,  345. 

except  as  to  legislative  authority  for  their  issue,  345. 

such  recital  is  available  by  way  of,  in  favor  of  a  bona  fide  holder  of  a 
coupon,  345. 

so  the  official  certificate  on  a  bond  as  to  the  circumstances  authorizing 
its  issue  is,  345. 

in  favor  of  a  holder  for  value  without  notice,  345. 

so  consenting  to  an  extension  of  the  time  for  completing  a  railroad, 
345. 

so  declaring  a  railroad  completed  to  the  satisfaction  of  its  officers,  345. 

so  reciting  in  bond  that  consent  of  taxpayers  lias  been  required,  345. 

where  the  constitution  limits  the  indebtedness  of  cities,  an  act  author- 
izing the  issue  of  bonds  without  any  such  limitation  is  void,  345. 

and  so  bonds  issued  under  it  and  disclosing  on  their  face  tbe  purpose  of 
their  issue,  345. 

and  a  mere  recital  of  the  statutory  authority  will  constitute  no,  345. 

where  the  bonds  have  been  issued  in  disregard  of  the  constitutional  pro- 
vision, 345. 

but  a  recital  that  the  conditions  precedent  to  the  issue  have  been  per- 
formed is,  345. 

and  a  misrecital  of  the  statute  authorizing  the  issue  will  not  amount  to 
a  matter  of  defense,  345. 

By  corporate  acts,  346. 

if  ante-dated  to  evade,  the  bond  being  registered,  it  is  liable,  346. 
especially  so  if  it  has  received  the  proceeds  of  the  bond,  346. 
receiving  the  proceeds  of  the  bonds  will  amount  to  a  waiver  of  irregu- 
larities in  their  issue,  346. 
so  will  the  levy  of  a  tax  for  them  and  payment  of  interest  for  a  term  of 

years,  346. 
or  receiving  railroad  stock  for  the  bonds  and  paving  interest  on  them, 

346. 
but  such  acts  do  not  constitute  an,  on  the  ground  of  original  want  of 

authority,  346. 
a  second  election  curing  irregularity  in  first  election,  346. 
it  is  sufficient  if  there  is  reasonable  certainty  in  the  manner  of  voting 

on  such  bonds,  the  other  requirements  of  the  statute  being  complied 

with,  346. 
the  regularity  of  a  bond   issued  under  an  old  statute  will   be  presumed 

after  twenty-eight  years.  346. 


682  INDEX. 

Reference  is  to  Sections. 

ESTOPPEL— Continued. 

Agents. 

Principal  estopped  by  conduct,  392. 

suffering  agent  to  act  as  principal,  392. 

so  suffering  another  to  draw  bills  of  exchange  in  his  name,  392. 

liable  to  a  bona  fide  holder  of  such  bills  for  value,  392. 

though  he  may  have  received  no  consideration  for  the  bill,  392. 

and  had  no  knowledge  of  that  particular  bill,  392. 

passing  by  principal  notes  similarly  executed  and  indorsed,  392. 

a  general  authority  may  be  presumed,  892. 

so  of  the  fraud  of  a  bank  director,  392. 

misappropriating  the  proceeds  of  paper  sent  to  him  in  his  official  capacity 
to  be  discounted,  392. 

or  of  an  accommodation  indorsement  without  authority  by  the  general 
cashier  and  financial  agent  of  a  note-broking  firm,  392. 

so  of  bills  and  notes  misapplied  by  any  agent  having  a  general  author- 
ity, 392. 

so  of  representations  of  the  agent  as  to  the  character  of  such  paper  dis- 
counted for  the  principal,  392. 

and  the  fact  that  principal's  instructions  to  agent  have  been  violated  is 
no  defense  against  a  bona  fide  holder,  392. 

if  the  agent's  act  is  within  the  general  scope  of  his  business,  392. 

a  general  agency  to  manage  a  business  as  a  clerk  or  as  general  manager 
will  not  cover  notes  or  bills,  392. 

especially  where  the  consideration  has  not  been  received  by  the  agent 
in  the  course  of  the  principal's  business,  392. 

an  indorsement  generally  warrants  the  authority  of  prior  parties  to  sign 
the  paper,  392. 

but  where  an  indorsee  has  voluntarily  taken  up  and  paid  a  bill  drawn 
by  an  agent  after  examination  of  the  agent's  authority,  392. 

and  has  been  obliged  to  pay  it  again  by  reason  of  the  agent's  want  of 
authority,  he  cannot  hold  his  immediate  indorser  as  warranting  the 
authority  of  such  agent,  392. 
See  Defenses. 

EVIDENCE, 

regulated  by  what  law,  55. 

proof  of  signature,  67,  69. 

attestation,  68,  69. 

to  explain  blank  indorsement  on  sealed  instrument,  70. 

proving  seal,  73. 

presumption  that  seal  was  properly  affixed,  73. 

to  show  omission  of  seal  by  mistake,  73. 

seal  intended  for  one  or  more  makers,  73. 

corporate  act  intended  by  seal,  73  n. 

to  show  date,  77. 

time  of  delivery,  77. 

correct  mistake  in  date,  78. 

to  show  date  of  indorsement,  82. 

onus  on  holder  to  show  funds  if  payable  "when  in  funds,"  111. 


INDEX.  683 

Reference  is  to  Sections. 

E  V 1 DENCE—  Continued. 

to  hold  acceptor  on  bill  when  the  payee's  name  and  indorsement  are  fictitious, 

being  the  name  of  the  drawer,  it  is  only  necessary  to  prove  the  signature  and 

indorsement  to  have  been  made  by  same  person,  164. 
acceptor's  knowledge  of  fictitious  party,  other  similar  acceptances  are  admissible, 

164. 
in  action  against  acceptor  when  payee  is  fictitious,  the  plaintiff  need  not  prove 

consideration  in  the  first  instance,  164. 
onus  on  the  defendant  to  show  want  or  failure  of  consideration,  180. 
by  attorney  as  witness  as  to  affixing  stamp  before  delivery,  211  n. 
stamp  admissible  in  evidence,  214. 

acts  of  congress  relate  only  to  the  United  States  Courts,  214. 
unstamped  instrument  admissible  in,  for  collateral  purposes,  215. 

Executors : 

an  executor's  note  is  presumptive  evidence  of  sufficient  assets  of  the 
estate  in  his  hands,  439. 

but  may  be  rebutted  by,  of  want  of  assets  or  other  consideration, 
439. 
presumed  in  Louisiana  to  be  personally  liable,  439. 

and  the  onus  of  proving  the  contrary  rests  on  him,  439. 
lunacy,  259. 
inquisition  when  conclusive,  260. 

Partners  and  partnership  : 

admissions  by  partners,  428. 
after  dissolution,  428. 

by  one  partner  may  be  used  against  all,  428. 
when  cannot  be  used  against  all,  428. 
admission  by  one  that  draft  had  been  protested,  428. 
when  not  equivalent  to  proof  of  notice  against  all,  428. 
dissolution  of  firm,  evidence  of,  437. 

onus  is  on  firm  to  show  that  note  was  given  for  individual  debt  of  part- 
ner, 417,  418. 

so  the  firm  must  prove  fraud,  418. 

and  when  shown,  the  onus  is  on  holder  to  show  his  own  good  faith, 
425. 
so  the  onus  is  on  new  partner  to  show  that  holder  knew  that  linn's  name 

was  improperly  used,  417. 
when  shown  to  have  been  given  for  individual  debt  of  firm  the  onus  is 

then  on  holder  to  show  that  lie  is  a  bona  fide  holder,  418. 
so  when  shown  to  have  been  given  by  one  partner  as  accommodation 
paper,  the  onus  is  on  the  holder  to  show  original  authority,  421,  422. 
or  subsequent  ratification  by  the  firm,  421. 
such  consent  must  be  clearly  shown,  421. 
what  is  not  sufficient  proof,  421. 
a  habit  of  giving  accommodation  indorsements  will  not  be,  of  t lie  linn's 

assent  to  an  accommodation  note  given  by  one  partner,  421. 
similar  notes  executed   in  such  manner  and  recognized   by  the  firm  are 
admissible  as,  of  authority  to  bind  firm,  405. 


684 


INDEX. 


Reference  is  to  Sections. 
EVIDENCE— Continued. 

"  surety  "  added  to  signature  is  presumptive  evidence  of  its  accommoda- 
tion character,  419. 

the  onus  is  on  holder  to  rebut  the  presumption  that  the  indorsement  is 
given  in  fraud  of  the  firm,  419,  421  n. 

signed  in  blank  by  a  firm,  fact  that  it  is  filled  up  by  the  holder  at  the 
time  of  transfer  and  in  the  transferee's  presence  is  no  evidence  of  its 
being  accommodation  paper,  419. 

fraud  may  be  proved  under  the  general  issue,  425. 

under  such  issue  the  defendant  must  prove  notice  as  well  as  fraud,  425. 

suspicious  circumstances  are,  of  bad  faith,  425. 

partner  signing  individual  name  before  that  of  firm  is,  to  show  that  holder 
knew  of  the  circumstances,  414. 

Agents. 

Burden  of  proof,  393. 

holder  must  prove  agent's  authority,  393. 

the  onus  of  making  such  proof  is  upon  the  holder,  393. 

changed  by  statute  as  to  bank  drafts  in  England,  393  n. 

and  applied  to  the  indorsement  of  the  name  of  the  payee,  "A.  B.,  per 
C.  D.,  agent,"  393  n. 

the  authority  of  agent  of  an  incorporated  company  is  to  be  presumed 
from  his  office,  393. 
cashier  of  bank,  393. 

but  if  charter  provides  that  its  aflairs  shall  be  conducted  by  a  board  of 
directors  it  will  not  be  presumed  that  the  president  and  secretary,  by 
virtue  of  their  offices,  have  authority,  393. 

so  of  the  selectmen  of  a  town,  393. 

authority  to  bind  the  town  must  be  shown,  393. 

so  of  the  trustees  of  a  school  district,  393. 

agent's  giving  express  warranty  of  the.  genuineness  of  a  note  on 
selling  it,  393. 

and  if  holder  relies  on  its  ratification  by  principal,  he  must  show  execu- 
tion by  the  agent  and  the  subsequent  adoption  by  the  principal  of  the 
unauthorized  signature  as  his  own,  393. 

in  Texas  the  holder  need  not  prove  the  authority  of  the  agent,  393. 

unless  expressly  denied  in  the  pleadings,  393. 

at  common  law  the  averment  "in  his  own  proper  handwriting"  was 
formerly  held  to  be  supported  by  proof  of  signature  by  an  unauthor- 
ized agent,  393 

and  could  be  rejected  as  surplusage  if  untrue,  393. 

it  may  still  be  supported  by  evidence  of  a  subsequent  promise  by  defend- 
ant to  pay,  393  n. 

and  this  has  now  been  changed  where  there  is  no  proof  of  a  subsequent 
promise  by  the  principal,  393. 

agent's  authority  may  be  shown  by  parol  evidence,  393. 

though  acting  under  a  special  written  authority,  393. 

agent's  statement  as  to  former  draft  executed  by  him  under  similar  cir- 
cumstances and  paid  by  principal,  is  admissible  as  evidence  of  his 
agency,  393. 


INDEX.  685 

Reference  is  to  Sections. 

E  V I DE  N  CE—  Continued. 

admissions  of  the  principal,  393. 

payee's  admissions  of  his  agent's  authority  in  an  action  by  indorsee 
against  maker,  not  admissible,  393. 

Corporations  : 

the  best,  though  not  the  only,  of  authority  from  a  corporation  to  its 
agent  is  in  its  own  minutes,  367. 

evidence  that  an  agent  has  been  acting  as  cashier,  and  that  his  acta  as 
such  have  been  recognized  by  resolution  of  the  directors  may  be  suffi- 
cient proof  of  his  official  position,  367. 

EXCHANGE, 

rate  of,  determined  by  what  law,  42,  56. 
additional  stipulations  for  valid,  200. 
if  not  designed  to  evade  the  usury  laws,  200. 
See  Ee-exchange,  19. 

EXECUTORS, 

capacity  to  transfer  determined  by  the  lex  loci  contractus,  35,  49. 

execution  of  instrument  by,  134. 

as  "A.  B.,  executor,"  individually  liable,  134. 
for  other  illustrations,  see  134. 

payable  to,  158. 

description  of  as  payee,  158. 

cannot  bind  the  estate  by  bill  or  note  signed  as,  438. 

estate  not  hound  by  acceptance  for  a  distributive  share,  438. 

although  the  funds  of  the  estate  are  still  in  their  hands,  438. 

cannot  bind  the  estate  by  the  renewal  of  a  note  which  has  matured,  438. 

nor  by  giving  their  note  for  goods  purchased  under  express  authority  of  the  testa- 
tor's will,  438. 

though  note  be  signed  "A.  B.,  executor  of  the  estate  of  C.  D.,  deceased,"  438  n. 

giving  their  own  note  for  debt  of  the  estate  does  not  discharge  the  estate  from  lia- 
bility, 438. 

may  be  sued  as,  438. 

in  equity  at  least,  438. 

unless  such  note  has  been  taken  in  absolute  payment,  438. 

a  promise  by,  to  pay  debt  of  testator  may  be  in  consideration  of  assets  of  the 
estate  in  their  hands,  438. 

and  in  such  case  will  support  a  judgment  against  him  de  bonis  testatoris,  438. 

Personal  liability  of,  439. 

a  note  or  bill  given  by,  as  such,  are  individually  liable,  439. 

so  upon  an  indorsement,  439. 

so  upon  a  written  promise  to  pay  a  debt,  439. 

though  having  assets  of  the  estate  in  their  hands  at  the  time  of  giving 

the  promise,  439. 
so  giving  note  in  renewal  of  one  made  by  their  testator,  439. 
must  expressly  limit  their  promise  to  payment  out  of  the  estate  to  avoid 

individual  liability,  439. 
not  personally  liable  on  bill  or  note  beyond  the  amount  of  assets  actually 

received  by  them,  439. 


686  INDEX. 

Reference  is  to  Sections. 

EXECUTORS— Continued. 

unless  promise  is  founded  upon  other  sufficient  consideration,  439. 
what  is  such  a  consideration,  439. 

and  where  he  gave  his  own  note  to  take  up  that  of  his  testator  in  con- 
sideration of  a  definite  agreement  for  an  extension  of  time,  439. 
some  new  consideration    other  than  the  original   indebtedness  of  the 

deceased  is  always  necessary,  439. 
the  note  itself  is  presumptive  evidence  of  sufficient  assets  of  the  estate 

in  his  hand,  439. 
but  may  be  rebutted  by  evidence  of  want  of  assets,  439. 
giving  a  note  as  such,  in   Louisiana  the  presumption  is  that  he  intends 

to  become  personally  liable  on  it,  439. 
and  the  burden  of  proving  the  contrary  rests  on  him,  439. 
in  North  Carolina,  where  the  note  was  given  for  legal  advice  to  him  as, 

he  was  held  personally  liable  upon  it,  439. 
and  parol  evidence  was  not  admitted  to  discharge  him  from  liability, 

439. 
so  he  may  become  liable  as,  as  a  member  of  a  firm  upon  its  paper, 

439. 
where  he  represents  a  deceased  partner  and  continues  to  receive  a  share 

of  the  profits  of  the  business  in  the  interests  of  the  estate,  439. 
and  this,  although  his  name  does  not  appear  in  the  firm,  439  n. 

As  payees,  440. 

such  words  merely  descriptio  personw,  440. 

and  the  bill  or  note  is  the  individual  property  of  the  payee  named,  440. 

the  note  should  not  be  made  payable  to  the  deceased  with  intention  of 

vesting  it  in  his  personal  representative,  440  n. 
a  note  payable  to  the  "lawful  attorney  of  A.,  widow  of  D.,  deceased," 

440. 
6uch  attorney  may  maintain  an  action  on  the  note  in  his  own  name, 

440. 
so  if  made  to  one  as,  he  may  sue  on  it  in  his  name,  440. 
or  in  his  representative  capacity,  440. 
and  if  he  has  renounced  the  executorship  without  bringing  suit,  the 

administrator  de  bonis  non  may  sue,  440. 
and  no  one  but  the  administrator  de  bonis  non  can  sue,  440. 
if  note  is  given   to  the,  for  debt  due   his  testator,  it  will  go  to  such 

administrator,  440. 
but  suit  on  a  bond  given   to  him  as,  will  survive  on   his  death  to  his 

representative,  440. 
and  not  to  the  administrator  de  bonis  non  of  his  testator,  440. 
so  of  a  note  payable  to  the,  individually,  440. 

but  the  suit  carried  on  by  his  representative  for  the  use  of  the  adminis- 
trator de  bonis  non  of  his  testator,  440. 
at  common  law  he  may  sue  on  it  in  his  representative  capacity,  440. 
and  in  such  action  may  join  other  counts  on  promises  to  the  testator.  440. 

Transfer  by,  441. 

may  transfer  and  dispose  of  the  personal  property  of  the  deceased,  441. 
and  this  includes  notes  taken  by  him  in  payment  of  property  sold.  441. 


INDEX.  687 

Reference  is  to  Sections. 

EXECUTORS—  Contin  ved. 

may  transfer  such  note  to  a  distributee  of  the  estate  in  payment  of  hia 
share  of  the  estate,  441. 

and  such  transferee  may  maintain  an  action  on  it  in  his  own  name.  441. 

cannot  be  assigned  by  him  to  a  creditor  as  collateral,  441. 

or  in  preference  to  and  exclusion  of  other  creditors,  441. 

nor  in  payment  of  his  individual  debt,  441. 

a  subsequent  administrator  cle  bonis  non  may  tile  a  bill  in  equity  against 
the  assignee  of  such  note  and  obtain  an  injunction  against  its  collec- 
tion or  transfer,  441. 

and  both  executor  and  assignee  may  be  held  liable  for  the  breach  of 
trust,  441. 

especially  where  the  character  of  the  note  is  shown  on  its  lace,  441. 

and  where  an  indorsee  has  taken  a  note  with  notice  of  its  character,  the 
indorsement  will  be  set  aside  as  void,  441. 

and  the  fact  that  it  is  payable  to  the  payee  as,  will  be  sufficient  notice 
of  its  character,  441. 

note  payable  to  "the  executors  of  A.  B."  all  must  join  in  transferring  it, 
441.  ' 

if  made  or  transferred  to  one  who  is  dead,  in  ignorance  of  that  fact,  will 
amount  to  a  making  and  transferring  to  his  personal  representative- 
441. 

but  if  made  knowingly,  is  null  and  void.  441. 

on  the  death  of  the  holder  of  bill  or  note  the  right  to  transfer  passes  to 
his,  441. 

and  an  indorsement  by  him  is  as  effectual  as  if  made  by  the  deceased 
payee,  441. 

so  he  may  transfer  a  note  as  collateral  security,  441. 

for  a  judgment  rendered  against  the  testator,  441 . 

but  he  cannot  transfer  without  indorsement  a  note  payable  to  the  order 
of  his  testator,  441. 

so  as  to  pass  a  legal  title,  441 . 

if  transferred  before  maturity  by  delivery  without  indorsement  by  the 
testator,  it  may  be  subsequently  indorsed  by  his  administrator,  442. 

and  if  such  delivery  was  made  upon  good  consideration  with  an  agree- 
ment for  indorsement  which  testator  afterwards  refused  to  perforin, 
his  executor  may  be  compelled,  by  a  bill  in  equity,  to  make  such  in- 
dorsement, 442. 

but  the,  cannot,  by  delivery,  complete  the  transfer  of  a  bill  which  lias 
been  indorsed  and  not  delivered  by  his  testator,  442. 

nor  can  he  deliver  a  note  payable  to  bis  testator  and  indorsed  in  blank 
by  him,  442. 

nor  can  he  complete  an  accommodation  indorsement  which  was  deliv- 
ered after  the  testator's  death,  in  ignorance  of  that  event,  442. 

the  estate  of  the  testator,  in  such  case,  will  not  be  bound  by  a  fresh 
delivery,  442. 

one  of  several  executors  may  transfer  a  note  or  bill  payable  to  their  '•  — 
tator,  442. 

though  this  has  been  questioned.  44"J. 


688  INDEX. 

Reference  is  to  Sections. 

EXECUTORS  -Continued, 

that  one  of  two,  may  transfer  a  bond  and  mortgage  made  to  them  ir 

their  representative  capacity,  442. 
a  transfer  by,  in  the  State  where  he  is  appointed,  will  enable  the  trans- 
feree to  sue  in  another  State  in  his  own  name,  442. 
adding  to  signature  in  an  assignment,  "executor  and  devisee,"  is  notice 

to  assignee  of  the  will  and  its  contents,  442. 
and  if  the  transfer  be  made  in  consideration  of  an  individual  debt,  the 

assignee  will  take  with  notice  of  the  breach  of  trust,  442. 
but  where  the,  charges  himself  with  the  amount  of  a  note  belonging  tc 

his  testator,  he  thereby  becomes  the  owner  of  it,  442. 
he  cannot  acquire  claims  against  the  estate  for  less  than  their  actual 

value,  442. 
but  a  claim  so  acquired  will  be  held  by  him  for  the  benefit  of  the  estate, 

442. 
See  Action — Administrator. 

EXEMPTIONS  FROM  LEVY  AND  SALE, 

are  questions  governed  by  the  lex  fori,  57. 

F. 

FARMERS, 

cannot  be  parties  to  commercial  paper  in  Russia  and  Servia,  246. 

FELONS, 

cannot  be  parties  to  commercial  paper,  247. 

FEME  COVERT, 

See  Married  Women. 

FICTITIOUS  NAME, 

a  bill  with  drawee's  name,  is  equivalent  to  a  promissory  note,  172. 

maker's  name,  148. 

maker  liable,  but  not  on  instrument,  148. 

firm's  name,  407. 

FICTITIOUS  PAYEE,  161,  163,  164. 

equivalent  to  being  payable  to  bearer,  161. 
"or  bearer"  equivalent  to  bearer,  161. 
may  make  title  without  indorsement,  162. 
non-existing  corporation,  161. 
partnership,  one  partner  dead,  161. 
"to  order"  equivalent  to  a  fictitious  payee,  161. 

nominal  payee's  indorsement  not  necessary,  cannot  sue  as  indorsee,  161  n. 
real  payee  to  whom  delivered  may  indorse,  162. 
fraudulent  indorsement  of  a,  is  a  forgery,  162. 

if  to  an  assumed  name  the  holder  may  own  himself  to  be  such  person,  16? 
parol  evidence  admissible  to  show  it,  162. 
real  payee  forged  by  maker,  161. 
acceptor  not  estopped,  161. 
onus  probandi  on  holder,  162. 
American  statutes,  169. 
foreign  statutes,  170. 
See  Payee's  Name. 


INDEX.  689 

Reference  is  to  Sections. 

FIGUKES, 

amount  expressed  in,  105. 

sul>iect  to  expressed  amount  in  body  of  paper,  105. 

loreign  statutes,  105. 

FIRM, 

See  Partners  and  Partnership. 

"FOR  THE  USE  OF," 

principal  shown  by  execution,  139. 

FOR  THE  TIME  BEING, 

payee's  official  designation,  152. 

•'FOR  VALUE," 

See  Consideration. 

FOREIGN  BILLS, 
what,  3. 
denned,  232. 

known  in  the  time  of  James  I.,  232. 
by  English  statute,  232. 

interstate  bills  are  in  the  United  States,  3,  20,  233. 
delivered  in  Bavaria,  blanks  afterwards  filled  up  in  England,  183. 
"  foreign  bills,"  written  at  the  bottom  of  a  note  destroys  its  negotiability,  195, 
indorsement  when  equivalent  to  a,  234. 
generally  drawn  in  sets  of  three  or  more  parts,  234. 
distinguished  from  inland  bills,  234. 

should  be  averred  to  be  a  foreign  bill  in  pleading  at  common  law,  234. 
prima  facie  a,  from  date,  235. 
warranted  to  be,  from  indorsement,  235. 

acceptor  knowing  it  to  be,  may  set  up  in  defense  its  inland  character,  235. 
not  a  defense  against  a  bona  fide  holder,  235. 
American  statutes,  236. 

See  Bills  of  Exchange— Inland  Bills. 

FOREIGN  LAWS, 

presumptions  as  to,  34. 

must  be  proved,  34. 

conclusively  established  by  local  foreign  decisions,  37. 

need  not  be  known  to  parties  at  time  of  contract,  51 

not  enforced  as  to  stamp,  209. 

FOREIGN  STATUTES, 
as  to  conflict  of  laws,  59. 
writing,  60. 
signature,  62,  63. 
mark,  64. 
"  subscription,"  66. 
sealed  instruments,  71. 
date,  75. 

of  indorsement,  82. 

2t 


690  INDEX. 

Reference  is  to  Sections. 

FOREIGN  STATUTES— Continued. 

designation  ofbillsof  exchange,  as  such  in  plain  words,  86. 
"in  Hebrew  letters,"  in  Hungary,  86. 
payment  in  money  required,  96  n. 
marginal  figures  expressing  amount,  105. 
as  to  restricting  the  amount,  106. 

time  of  payment,  109. 

place  of  payment,  121. 
in  England  accepting,  payable  at  a  specified  place  ;  (inly  and  not  elsewhere,"  122, 

126. 
as  to  execution  by  agent,  146. 

name  of  drawer  being  fictitious,  148. 

no  defense  at  suit  of  a  bona  fide  holder,  148. 

payee's  name,  170. 

drawee's  name,  171. 

drawer  and  drawee  being  one  person  prohibited,  172. 

negotiable  words,  174. 

consideration,  179. 

"  for  value  received,"  179. 

blanks,  189. 

blank  indorsements  being  prohibited,  189. 

stamp,  209. 
foreign  and  inland  bills  of  exchange,  232. 
as  to  parts  and  copies  of  foreign  bills,  243. 
presentment  for  acceptance  and  protest  of  the  several  parts,  243. 
capacity,  civil  restrictions,  245. 

infants,  265. 
ratification  by  infant  must  be  in  writing  (England),  276. 
liability  and  capacity  of  married  women,  281,  303  n. 
requirements  of,  as  to  partnership  contracts,  394. 
Engiish  statute  conferring  banking  powers,  332. 

English  statute  making  bills  or  notes  indorsed  or  made  in  the  name  of  a  com- 
pany under  its  authority,  binding  upon  it,  362,  393  n. 
Statute  of  6  Anne,  c.  22,  328. 
factors  or  agent  pledging  principal's  goods,  366. 

FORGERY, 

indorsing  a  note  payable  to  the  "stewardesses  for  the  time  being  of  the  P.  D. 

Society,"  152. 
indorsement  of  maker's  name  on  note  payable  to  maker's  order.  154. 
by  maker  of  payee's  indorsement,  161. 
fraudulent  indorsement  of  fictitious  payee's  name,  162. 
party  negotiating  with  knowledge  of,  estopped  from  denying,  163. 
indorsement  by  party  of  same  name  is  a,  166. 

bill  payable  "to or  order"  cannot  be  the  subject  of,  in  England,  168. 

contra,  in  Indiana,  168. 
note  written  over  genuine  signature,  181. 
may  be  a,  though  bill  is  unstamped,  213. 
agent  signing  principal's  name  without  authority  is,  3S6. 


INDEX.  691 

Reference  is  to  Sections. 

FORGE  BY—  Continued. 

principal  cannot  ratify,  374. 

fraud  by  agent  cannot  make  an  indorsement  of  principal's  name  a,  390. 

FORM, 

regulated  by  lex  loci  contractus,  21,  36. 

so  of  acceptance,  21. 

and  of  indorsements,  21. 

must  be  written,  60. 

which  includes  printing,  engraving,  lithographing,  &c.,  60. 

need  not  be  in  ink,  60. 

materials,  paper,  &c,  61. 

metallic  tokens,  16  n. 

signature  necescary,  62. 

no  particular  words  necessary,  86. 

"without  defalcation  or  discount,"  86. 

"given  for  a  patent  right,"  86. 

bill  of  exchange  designated  as  such  by  foreign  law,  86. 

it  should  be  for  the  payment  of  money,  87. 

in  a  note  "I  promise,"  S7,  408. 

in  a  bill,  a  request  or  order  to  pay,  87. 

the  word  "pay  "  is  not  indispensable,  87. 

mistake  of  expression  immaterial,  87. 

for  illustrations,  see  87. 

a  mere  acknowledgment  not  sufficient,  88. 

American  statutes  as  to,  88,  96. 

a  due-bill  is  not  sufficient,  88. 

"IOU"  not,  88. 

certificate  of  deposit  or  receipt,  89. 

what  words  are  sufficient  to  imply  a  promise,  90. 

receipts,  90. 

receiver's  certificate,  90. 

municipal  warrants,  91. 

coupons,  91. 

school  district  warrants,  91. 

must  be  unconditional,  92. 

for  illustrations,  see  92,  93. 

condition  must  be  expressed,  94. 

must  be  for  the  payment  in  money  only,  99. 

payable  in  gold  or  specie,  97. 

amount  payable  must  be  certain,  104. 

sufficient  if  amount  ascertainable,  104. 

amount  may  be  expressed  in  figures,  105. 

foreign  statutes  as  to  figures,  105. 

bl»nks,  105,  110,  181  et  seq. 

payment  out  of  a  particular  fund,  107. 

reference  to  fund  for  reimbursement,  10S. 

Time  of  payment: 

must  be  payable  at  time  certain,  109 

foreign  statutes  as  to  time.  109. 


692  INDEX. 

Reference  is  to  Sections. 

FORM— Continued. 

parol  evidence  as  to  time,  110. 

blanks,  110. 

payable  "when  able,"  &c,  "when  in  funds,"  &c,  111. 

"  when  realized  from  sales,"  "  when  collected,"  &c,  112. 
on  death,  113. 
on  marriage,  113. 
on  coming  of  age,  113. 
in  installments,  114. 
on  default  of  interest,  114. 

after  notice,  114. 
on  return  of  this  certificate,  115. 
on  construction  of  a  railroad,  115. 
on  settlement  of  estate,  115. 
on  arrival  of  ship,  115. 
maker's  or  drawer's  name,  129  et  seq. 
must  appear,  129. 
generally  subscribed,  129. 
may  be  in  body,  129. 
must  not  be  in  the  alternative,  129. 
may  be  assumed  name,  129. 
initials,  129. 
execution  by  a  partnership,  130. 
acceptance  by  a  partnership,  130. 

Execution  by  agent : 

principal  not  named,  131  et  seq. 
execution  by  public  officer,  132. 

See  Agents. 
maker's  name. 

"agent,"  "president,"  "cashier,"  133. 

"executor,"  "guardian,"  "administrator,"  134. 

"surety,"  134. 

"  assignee,"  134. 

Execution  by  corporations,  135  et  seq. 

bill  by  one  corporate  officer  on  another  equivalent  to  a  note,  154. 
drawer  and  drawee  one  person   is   equivalent  to  a  promissory  note,. 
172. 
expressions  of  consideration,  "  value  received,"  &c,  178  et  seq. 
contemporaneous  agreements,  197  et  seq. 
additional  stipulations,  204  et  seq. 
stamp,  209  et  seq. 
delivery,  216  et  seq. 
foreign  bills  of  exchange,  232  et  seq. 
sets  or  parts,  238  et  seq. 

See  Payee's  Name— Place  of  Payment— Time  of  Payment. 

"FOR  MY  USE," 

added  to  indorsement  shows  a  limited  agency,  388. 


INDEX.  693 

Reference  is  to  Sections. 

FEAUD, 

Partners  and  partnership : 

onus  of  proving,  of  firm's  paper  rests  on  the  firm,  418. 

what  is  presumptive  evidence  of,  in  case  of  partnership  paper,  41 8. 

pleading  fraud,  425. 

may  be  proved  under  the  general  issue,  425. 

must  prove  notice  as  well  as,  425. 

an  injunction  will  be  granted  in  case  of,  to  restrain  the  negotiation  of 

the  bill,  425. 
if  made  in  business  outside  of  that  of  the  firm,  fraud  will  be  presumed 

against  a  holder  with  notice,  425. 
accepting  bill  by  one  partner  in,  of  his  firm,  with  blank  for  the  drawer's 

name,  425. 
executed  in  blank  and  left  negligently  within  the  control  of  a  clerk  and 

negotiated  in,  of  the  firm  after  death  of  partner  drawing  it,  425. 
where  fraud  is  shown,  the  onus  is  on  the  holder  to  show  his  own  good 

faith,  425. 
as  a  defense,  425. 
will  avoid  firm's  paper,  424. 
and  where  both  parties  to  the  transfer  partake  in  the,  the  transferee  will 

hold  such  paper  as  a  trustee  for  the  firm  and  its  creditors,  424. 
will  not  render  the  paper  invalid  in  hands  of  a  bona  fide  holder,  424. 
one  partner  receiving  and  misappropriating  money  in  the  regular  busi- 
ness of  the  firm,  424. 
so  where  a  note  is  given  to  one  partner  in  payment  for  partnership  prop- 
erty sold,  424. 
misapplication  of  money  received  by  discounting  the  firm's  paper,  424. 
a  surviving  partner,  bill  extended  in  blank  by  deceased  partner  and 

fraudulently  negotiated  after  his  death,  is  liable,  424. 
by  a  deceased  partner,  executor  of  liable  in  equity  to  a  bona  fide  holder, 

424. 
agent  for  selling  patent,  authorized  to  take  notes  payable  in  joint  names 
cannot  bind  the  principal   by  a  fraudulent  accommodation  indorse- 
ment, 424. 

even  in  the  hands  of  a  bona  fide  holder,  424. 
when  the  amount  has  been  made  too  large  by,  parol  evidence  admissible  to  shov 

it,  106. 
of  public  officer  renders  individual  liable,  132. 
in  filling  blank  signature,  181. 
not  prima  facie  by  an  omission  of  stamp,  212. 
by  agent  in  delivery,  222. 
prima  facie  from  drunkenness,  261. 
as  to  infant's  agreement,  no  reply  or  estoppel,  272. 
as  to  infant's  agreement,  criminally  liable,  272. 
as  to  coverture,  not  liable,  272. 

tin ii igh  signing  "A.  B.,  widow,"  272. 
See  Defenses. 

FRAUDS, 

See  Statute  of  Frauds. 


694  INDEX. 

Reference  is  to  Sections. 


GIVEN  FOR  A  PATENT  RIGHT, 
when  necessary  to  be  expressed,  86. 
by  statutes  requiring  it,  86. 
effect  on  a  bill  or  note,  86  n. 

GOLD, 

requirements,  satisfied  under  United  States  Legal  Tender  Act,  98. 

GOOD  FOR, 

equivalent  to  a  promise  to  pay,  87. 

GOODS, 

notes  and  orders  payable  in,  101. 

GOVERNMENT  BONDS, 
See  Bonds. 

GOVERNMENTS, 

As  pcu-ties,  348. 

may  issue  commercial  paper,  348. 

generally  in  the  form  of  bonds,  348. 

either  with  or  without  coupons,  348. 

by  its  authorized  officers  may  become  a  party  to  negotiable  paper,  350. 

with  all  the  rights  and  liabilities  of  an  individual  party,  350. 

except  the  liability  to  be  sued,  350. 
paying  a  check  on  a  forged  indorsement,  350  n. 
a  State  is  liable  as  an  indorser  of  negotiable  railroad  bonds,  350  n. 
an  officer  of  the  government  cannot  bind  the  government  by  drawing  or 

accepting  a  bill  of  exchange,  350. 
or  by  the  execution  of  a  promissory  note  in  the  name  of  the  govern- 
ment, 350. 
acceptance  by  "John  B.  Floyd,  Secretary  of  War,"  for  supplies  furnished 

the  War  Department,  does  not  bind  the  government,  350. 
the  authority  of  government  agents  is  a  matter  of  public  notoriety,  350. 

and  must  be  strictly  construed,  350. 
an  agent  who  is  authorized  to  borrow  money  for  the  State  by  snle  of 

Donds,  cannot  make  such  sale  on  credit,  350. 
without  express  authority,  350. 
must  use  the  same  diligence  to  charge  indorsees  as  individuals,  350. 
a  State  cannot  be  sued  except  under  the  provisions  of  the  Constitution 

of  the  United  States,  350. 
not  on  a  warrant  given  by  State  auditor,  350. 
not  by  a  bill  in  equity  to  suffer  the  allowance  of  a  set-off  against  a  claim 

due  it,  350. 
if  the  obligations  are  issued  with  provision  that  they  should  be  received 

in  payment  of  debts  due  the  State,  it  cannot  repeal  such  provision  so 

as  to  affect  obligations  then  in  circulation,  350. 

Actions  by  and  against  public  agevts,  351. 

if  note  is  made  to  an  agent  of  United  States  for  money  due  the  govern- 
ment, it  may  bring  suit  upon  it  in  its  own  name,  351. 
without  indorsement,  :!"il . 


INDEX.  695 

Reference  is  to  Sections. 

GOVERNMENTS—  Continued. 

a  tax  collector  taking  note  in  his  own  name  for  taxes  due  to  the  State, 
cannot  sue  on  it  in  such  name.  351. 

bo  a  land  agent  of  government,  351. 

even  though  note  be  non-negotiable,  351  n. 

the  agent  not  individually  liable  on  such  paper  if  executed  in  his  official 
capacity  only,  351. 

so  held  of  a  bill  drawn  on  the  French  Government  by  the  French  Con- 
sul General,  351  n. 

an  Indian  agent  will  not  be  liable  on  an  official  contract  for  transporta- 
tion, 351. 

so  an  indorsement  "A.  B.,  Sheriff.*'  is  notice  of  his  official  capacity  to  all 
takers,  351. 

and  will  not  render  him  personally  liable,  351. 

See  Action — Agents — Bills  of  Credit — Public  Officers. 

GRACE,  DAYS  OF, 
days  of,  what  are,  16. 
bank  bills  are  not«entitled  to,  16. 
checks  not  entitled  to,  16. 
post-dated  check  not  entitled  to,  80. 
bank  bills  not  entitled  to,  16. 
sealed  instrument  not  entitled  to,  70. 
governed  by  lex  loci  contractus,  22,  51. 
lex  loci  solutionis,  31,  51. 
foreign  law  prima  facie  the  same  as  lex  fori,  34. 

lex  mcrcatoria,  34. 
not  if  payable  "on  demand,"  117. 
applies  to  non-negotiable  instrument  in  England,  177. 
contra  in  Connecticut,  177. 

GUARANTOR, 

indorsed  by  third  person  not  bound  at  suit  of  bona  fide  payee  if  blank  payee  filled 
contrary  to  agreement,  168. 

when  presumed  to  be,  409. 

a  corporation  without  express  authority  cannot  become  a,  334. 

hut  a  railroad  company,  in  transferring  township  bonds  given  to  aid  in  its  con- 
struction, may  guarantee  them,  334. 

in  such  case,  the  guaranty  is  an  original  contract,  334. 

GUARANTY, 

non-negotiable  guaranty  indorsed  on  note  does  not  render  note  non-negotiable,  176. 
non-negotiable  guaranty  is  not  made  negotiable  by  indorsement,  176. 
"value  received"  sufficient  to  satisfy  the  Statute  of  Frauds,  178. 
not  conclusive  to  enable  the  bidder  to  recover  on  a  naked  gift  to  him  by  the  guar- 
antor, 178  n. 
cannot  lie  written  over  a  blank  indorsement,  1S8. 

indorsement  bj  stranger,  foreign  law  prima  facie,  the  same  as  lex  fori,  34. 
a  liquidating  partner  cannot  render  the  other  parties  liable  by  a,  433. 

GUARANTY  TO  PAY. 

I,  equivalent  to  a  promise  to  pay,  87. 


696  INDEX. 

Reference  is  to  Sections. 

GUARDIANS, 

execution  by,  134. 

giving  a  note  by,  is  personally  liable  for,  443. 

and  may  be  sued  upon  it,  as  bis  individual  note,  443 

cannot  render  tbe  estate  of  bis  ward  liable  by  giving  a  note  as  surety  for  a  third 

person,  443. 
even  for  a  note  given  for  services  rendered  to  bis  ward,  443. 
though  he  may,  in  such  case,  charge  the  ward's  estate  with  the  amount,  443. 
in  Louisiana,  not  individually  liable  for  draft  given  in  the  management  of  the 

ward's  plantation,  443. 
even  though  the  draft  be  not  signed  by  him  as  guardian,  443. 
in  Texas,  execution  will  be  rendered  against  the  guardian  without  reference  tc 

the  course  of  administration  of  the  estate,  443. 
but  in  a  suit  to  recover  on  such  a  note  against  the  estate  of  the  ward,  judgment 

should  not  be  rendered  against  tbe  guardian  personally,  443. 
in  Louisiana,  to  bind  the  estate  of  ward  by  a  note,  judicial  authority  and  beneiit 

to  the  estate  are  necessary,  443. 
but  where  signed  without  designating  him  as,  may  prove  by  parol  that  the  note 

was  given  by  him  as  such,  443. 
and  in  consideration  of  a  debt  due  from  his  ward,  443. 
may  transfer  a  note  made  to  him  as  such,  444. 
and  if  taken  without  notice  of  any  breach  of  trust,  a  good  title  is  acquired  by 

such  transfer,  444. 
if  transferred  for  individual  debt,  with  knowledge,  can  be  no  recovery,  444. 
if  made  to  one  as,  be  may  sue  upon  it  in  his  own  name,  444. 
even  after  the  expiration  of  his  office,  444. 
and  after  his  death  his  executor  may  sue  on  it,  444. 
but  guardian  cannot  surrender  a  note  made  to  his  ward  and  take  a  worthless 

security  in  lieu  of  it,  444. 
nor  credit  upon  a  note  an  individual  debt  of  his  own  to  the  maker,  444. 

although  then  solvent,  444. 
but  where  a  note  is  made  to  a  guardian,  the  debts  of  his  ward  are  a  proper  set- 
off against  it,  444. 
if  guardian  has  loaned  funds  belonging  to  his  ward  and  taken  note  for  the  loan 

payable  to  himself  individually,  he  cannot  afterwards,  upon  the  insolvency  of 

tbe  borrower,  show  that  the  note  was  taken  by  him  as  guardian  for  the  funds 

of  his  ward,  444. 

GUARDIAN  OF  A., 

sufficient  designation  of  the  payee,  152. 

H. 

HEBREW  LETTERS, 

prohibited  in  Hungary  in  a  note  or  bill,  86. 

"HEIRS  OF  A.," 

sufficient  designation  of  the  payee,  152. 

HEIRS  OR  ASSIGNS  OF  A., 

insufficient  designation  of  tbe  payee,  152. 


INDEX.  697 

Reference  is  to  Sections. 

"HOLDEN," 

implies  a  promise  to  pay,  87. 

HOLDEK, 

defined, 14. 

designated  by  "  bearer,"  14,  174. 

"  order,"  14. 
"  bona  fide  bolder  for  value,"  14. 

HONOR,  ACCEPTANCE  FOE, 

See  Acceptance  Supra  Protest. 

HUSBAND  AND  WIFE, 
See  Married  Women. 

HUSBAND  OR  WIFE, 

a  note  payable  to,  is  equivalent  to  a  note  payable  to  the  husband  alone,  155. 
indorsement  by  maker  after  death  of  husband,  takes  out  of  Statute  of  Limita* 
tions,  155  n. 


.11  T  » 

when  is  equivalent  to  "we"  promise,  87. 

"I  PROMISE," 

corporation  principal  intended,  142. 

IDIOT, 

See  Lunatics. 

ILLEGALITY, 

See  Consideration. 

IMBECILE, 

See  Lunatics. 

IMPLICATION, 

of  payee's  name,  by,  151. 

extending  time  for  maturity  of  a  note  by,  119. 

partnership  may  be  created  by,  395. 

authority  to  bind  a  firm,  after  dissolution  may  be  by,  428. 

IN  BEHALF  OF, 

execution,  indicates  act  of  principal,  139. 

"IN  CASE  OF  NEED," 
what,  4. 

INDORSEMENT, 
defined,  13. 
on  allonge,  13. 

not  necessarily  on  back,  13,  66. 
in  blank  or  in  full,  13. 
general  or  special,  13. 
conditional,  13. 
absolute,  1">. 


698  INDEX. 

Reference  is  to  Sections. 

INDORSEMENT—  Continued. 
qualified,  13. 
restrictive,  13. 
irregular,  66. 
effect  of,  13. 

implied  agreement  and  warranty,  13. 
form  regulated  by  lex  loci  contractus,  21,  47. 
liability  governed  by  lex  loci  solutionis,  29,  31. 
prima  facie,  payable  where,  33. 

presumption  as  to  diligence  required  by  foreign  law,  34. 
is  a  separate  contract  from  the  making  or  drawing,  47. 
by  stranger,  foreign  law  prima  facie  that  of  the  forum,  34. 

an,  under  seal,  does  not  affect  the  negotiability  of  bill  or  note  not  under  seal,  70". 
sealed  instruments,  70. 

blank  indorsement  of  a  sealed  instrument  may  be  explained  by  parol  evidence,  70. 
date  prima  facie  evidence  of  the  time  it  was  made,  78  n.,  82. 
alteration  of  the  date  of,  82. 

necessary  to  transfer  bill  payable  to  "order  of  A.,"  151. 
not  necessary  to  a  suit  by  A.  on  such  a  bill,  151. 
by  all  payees  necessary,  155. 

except  partnership  note,  155. 
by  wife  surviving  (note  to  husband  and  wife),  155. 
note  to  order  of  maker,  153. 

inadvertently  on  the  face  of  note  by  the  payee,  154. 
bill  to  order  of  the  drawer  unnecessary  to  hold  the  acceptor,  154. 
by  agent  payee  to  principal  unnecessary  to  action,  156. 
unnecessary  to  transfer  if  payable  to  bearer,  159. 
coupons,  159. 

necessary  to  transfer  sealed  note  to  "A.  B.  or  Bearer,"  in  Ohio,  160. 
by  real  payee  in  name  of  fictitious  payee,  162. 
unnecessary  if  payable  to  fictitious  payee  or  bearer,  162. 
necessary  if  to  "A.  or  bearer,"  175. 

to  bearer  enlarges  negotiability  if  payable  before  to  order,  176. 
A.  "  at  his  own  risk,"  restricts  negotiability,  176. 
requires  delivery,  216. 
when,  is  equivalent  to  a  foreign  bill,  234. 

Married  women  : 

by  married  woman  not  binding  at  common  law,  288. 
American  statutes,  288. 
not  equivalent  to  a  transfer  at  common  law,  288. 
may  transfer  without  liability,  288. 
in  maiden  name,  note  so  made  before  marriage,  288. 
is  equivalent  to  a  transfer  if  authorized  by  husband,  288. 
an  agent  cannot  alter  a  note  by  changing  the  order  of  the,  361. 
the  fact  that  it  is  an  accommodation,  implies  no  power  of  alteration,  361. 
an,  by  an  officer  of  a  corporation  is  prima  facie  the  net  of  the  corporation,  368v 
of  a  note  for  collection  equivalent  to  a  power  of  attorney  to  collect,  377. 
warrants  the  authority  of  prior  parties  to  sign  the  paper,  392. 
in  firm  name  of  a  bill  drawn  in  a  fictitious  name,  409. 


INDEX.  09$ 

Reference  is  to  Sections. 

INDORSEMENT—  Continued. 

by  one  partner  in  the  name  of  firm  after  dissolution,  429,  433. 

by  liquidating  partner,  430,  433. 

a  surviving  partner  cannot  renew  an  accommodation  partnership,  434  n. 

INDOESEMENT  IN  BLANK, 
authority  to  fill,  181. 
so  on  blank  paper,  181. 
striking  out  an,  not  an  alteration,  182  n. 
changed  to  acceptance  not  an  alteration,  182  n. 
meaning  of,  by  lex  mercatoria,  188. 
may  be  filled  accordingly,  188. 

with  promise  of  payment  according  to  its  tenor,  188. 
notice  of  protest  necessary,  188. 
in  Massachusetts  by  statute,  188. 
cannot  be  filled  with  guaranty,  188. 
such  filling  does  not  avoid  it  as  a  transfer,  188. 
effect  of  additional  agreement,  188. 
how  far  intention  may  be  shown  by  parol  evidence,  188. 
American  statutes,  189. 
foreign  statutes,  189. 

in  some  countries  an,  is  a  mere  power  of  attorney  to  collect,  189. 
a  letter  of  credit  for  an  indefinite  sum,  373. 
and  the  giver  of  such  paper  is  liable  to  a  bona  fide  holder,  373. 
the  authority  to  fill  the  blank  is  irrevocable,  373  n. 
principal  indorsing  check  in  blank,  agent  raising  amount,  376. 
by  one  partner  in  firm  name,  and  transferred  by  him  after  dissolution  of  firm,  431, 
bill  in  name  of  firm,  blanks  after  death  of  such  partner -filled  up,  431. 
See  Blanks. 

INDORSEE, 
defined,  4. 
becomes  payee,  4. 

liability  governed  by  lex  loci  contractus,  31,  38. 
not  by  lex  fori,  38  n. 
nor  by  lex  loci  solutionis,  29,  31,  39. 

intent  governed  by  the  law  of  the  place  of  indorsement,  41. 
discharged  by  foreign  insolvency,  58. 
principal  indicated  as,  145. 
indorser  named  as  payee,  145. 

in  name  of  deceased  person  liable  to  bona  fide  holder,  150. 
before  delivery,  liable  for  blank  amount  filled,  187  n. 
liable  to  blank  payee  for  amount  tilled,  185. 

pay  at  place  named,  122  n. 
entitled  to  presentment  at  place  named,  127. 
as  agent  of  indorsee,  384. 
when  presumed  to  be  a  guarantor,  409. 

INFANTS, 

foreign  contract  of,  prima  facie  legal,  34. 
what  law  governs  as  to  capacity,  35. 


700  INDEX. 

Reference  is  to  Sections. 

INFANTS— Continued. 
who  are,  2G5. 
foreign  statutes,  265. 
Infants'  Relief  Act,  265. 
contracts  void  at  common  law,  26(1. 

void  if  not  beneficial  to,  267. 

beneficial  enforceable  in  equity,  267. 

executory  not  binding,  267. 

in  trade  voidable,  268. 

liability  of  other  partners,  268. 

joint  note  of  partners,  other  parties  not  liable  until  disaffirmed  by  infant,  268. 

Contracts  for  necessaries,  269. 
bill  or  note  voidable,  270. 
may  be  ratified,  270. 

note  after  twenty-one  for  supplies  before,  may  be  set  aside  for  fraud,  270. 
binding  if  for  exact  amount  of  necessaries,  270. 
only  prima  facie  evidence  of  value,  270. 
collection  may  be  restrained  by  injunction,  270. 
admissible  in  evidence  in  suit  for  value  of  goods,  270. 
acceptance  invalid,  270. 

after  twenty-one  a  bill  drawn  before  is  valid,  270. 
indorsement  of,  voidable,  271. 
maker,  drawer  and  accceptor  liable  on  infants'  indorsement,  271. 

cannot  be  questioned  by  maker  or  drawer,  271. 
co-maker  liable  as  if  sole  on  discontinuance  against  infant  maker,  272  D. 
not  estopped  by  false  representations,  272. 
when  liable  in  equity,  272. 

by  statute  in  Iowa,  272. 
not  liable  in  action  for  tort  on  contract,  272. 
liable  for  tort,  272. 

retaining  deposit  of  stakes  on  an  illegal  wager,  272. 
criminally  liable  for  false  representations,  272. 
on  note  for  damages  for  overdriving  a  horse,  272. 
bastardy  proceedings,  272. 
not  for  an  award  in  settlement  of  a  tort,  272. 

Ratification  : 

bill  or  note  for  necessaries  may  be  ratified,  270. 

after  twenty-one,  270. 
indorsement  of,  may  be  ratified,  270  n. 
ratification  by  express  promise  afterwards,  21,  273. 
sufficient  for  infants'  bill  or  note,  273. 

it  must  be  express,  273. 

must  be  absolute,  274. 

admission  insufficient,  273. 
declaration  of  intention  insufficient,  273. 
mere  acknowledgment  insufficient,  273. 
promise  after  suit  insufficient,  273. 
action  lies  on  ratification,  not  on  note,  273. 
part  promise  equivalent  to  ratification  pro  tanto,  273. 


INDEX.  701 

Reference  is  to  Sections. 

INFANTS— Continued. 

promise  to  pay  "  when  lie  could  "  is  conditional,  must  be  proved,  273. 
mere  proposition  insufficient,  274. 

will,  after  twenty-one,  directly  pay  debt,  not  a  ratification,  274. 
what  are  not  sufficient,  274. 

retaining  benefit  equivalent  to  ratification,  274,  275. 
implied  from  acquiescence,  27-"». 

promise  of  payment  before  twenty-one  not  a  ratification,  275. 
need  not  be  in  writing  at  common  law,  276. 
writing  necessary  by  English  and  American  statutes,  276. 
knowledge  of  the  circumstances  of  party's  freedom  from  liability  neces- 
sary, 276. 
such  knowledge  will  be  presumed,  276. 
manner  should  be  averred  in  pleadings,  276. 

Disaffirmance : 

disaffirmance  may  be  before  twenty-one,  276. 

especially  if  it  be  an  executory  contract,  276. 

ratification  not,  276. 
must  give  up  consideration  received,  277. 
no  re-exchange  if  property  demanded,  277. 
of  indorsement  without  return  of  consideration,  277. 
any  act  showing  clear  purpose  is  equivalent  to  disaffirmance.  277. 

Action  by  : 

may  receive  bill  and  sue  on  it,  278. 
must  sue  with  partners  (joint  holder),  278. 
agent  should  be  sued  with  partner  (joint  acceptance),  278. 
adults  alone,  if  note  joint  and  several,  278. 
See  Action. 

Defenses  : 

payment  known  to  infant's  indorsee  no  defense  at  suit  of  the  payee's 
guardian,  271. 

to  infant's  fatber  no  defense  at  suit  of  bona  fide  holder,  271. 
may  be  rescinded,  271. 
defense  personal  to  infant  or  personal  representative,  272. 
admissible  against  all  holders,  278. 

under  general  issue,  278. 
not  in  favor  of  joint  maker,  278. 
or  subsequent  indorser,  278. 
See  Defenses. 

INFORMALITY, 

See  Form. 

INITIALS, 

designating  payee's  official  character,  »  .7  n. 
signature  by,  63. 

INJUNCTION, 

See  Equity. 


702 


INDEX. 


Reference  is  to  Sections. 

INLAND  BILLS, 
what,  3. 
defined,  232. 

originated  in  England,  time  of  Charles  II.,  232. 
generally  drawn  in  single  parts,  234. 
every  bill  is  prima  facie  an,  235. 

See  Bills  of  Exchange — Foreign  Bills. 

INSANITY, 

See  Lunatics. 

INSOLVENCY, 

effect  of,  on  a  foreign  discharge,  57. 

INSOLVENT  ASSIGNEE, 

by  husband  carries  wife's  note,  322. 

INTEREST, 

rate  of,  place  of  payment  may  be  chosen,  28. 

unexpressed  determined  by  lex  loci  contractus,  41. 
determined  by  place  of  delivery,  24. 
lex  loci  solutionis,  30. 

situation  ot  mortgaged  premises  and  the  choice  enforced  in 
the  place  having  the  lower  rate,  30. 
drawer's  liability  for,  determined  by  lex  loci  contractus,  32,  39. 
acceptor's  liability  for,  determined  by  lex  loci  contractus,  33. 
presumption  as  to  foreign  law,  34,  41. 

after  maturity  computed  at  the  rate  fixed  by  the  lex  fori,  41,  56. 
not  expressed  when  payable,  119. 
omission  cannot  be  supplied,  182. 
blank  may  be  filled,  186. 
expressed  in  memoranda,  195. 
alteration  is  material,  195. 
additional  stipulation  for,  effect  on  negotiability,  200. 

INTEREST  COUPONS, 

payable  to  bearer,  though  detached,  are  negotiable,  91. 

INTEREST  WARRANTS, 

detached  and  no  payee  expressed,  not  negotiable,  150. 

I NTERPRETATION, 

governed  by  the  lex  loci  solutionis,  28. 

"  [  O  U," 

is  a  sufficient  promissory  note,  90. 

sufficient  designation  of  the  payee,  152. 

parol  evidence  admissible  to  show  person  intended,  152. 


JOINT-MAKERS, 

who  are  not,  87. 

payee  one  person  cannot  sue,  153 

assignee  can  sue,  153. 


INDEX.  703 

Reference  is  to  Sections. 

JOINT-MAKERS— Omtinued. 

co-payee  can  sue,  153. 
cannot  set  up  infancy  of  co-maker,  278. 

co-maker  with  an  infant  will  be  liable  as  sole  maker  on  discontinuance  of  the 
suit  as  to  infant,  272  n. 

JOINT  NAMES. 

execution  by  a  firm  in,  of  all  the  partners,  408. 

JOINT-PAYEES, 

not  partners,  powers  of,  406. 

JOINT  PROMISE, 
what  is,  1 4'.J. 

"I  promise,"  Oct.,  signed  by  several  makers,  149.  408. 
though  surety  added  to  one  of  the  signatures*  149. 

JOINT  AND  SEVERAL  PROMISE, 
comprises  several  notes,  149. 
as  to  the  remedy,  149. 
is  joint  or  several,  149. 
"  I  promise."  Ac,  149. 
we  or  either  of  us  promise,  143. 
alteration  as  to  one  discharges  all,  149  n. 
one  valid  and  other  invalid,  149. 
alteration  by  adding  signature,  149. 

JOINT-TENANTS. 

cannot  bind  one  another  as  partners  by  commercial  paper,  406. 

JOINTLY  AND  SEVERALLY 

indicating  liability  of  corporation  or  agent,  143. 

JURY. 

See  Law  and  Fact. 

L. 

LAW  AND  FACT, 

dissent  of  partner  to  contract  of  firm  is  a  question  of  fact  for  the  jury.  400. 

so  whether  an  instrument  was  given  for  a  firm  debt,  415. 

Bo  the  acceptance  of  a  l>ill  in  firm  name  by  one  partner,  415. 

the  agency  of  wile  for  husband  is  a  question  of  fact  for  the  jury,  318. 

so  reduction  to  possession  by  husband  of  wife's  choses  in  action,  326. 

so  whether  a  wife  ^iirn~  note  as  surety  for  her  husband  or  in  her  own  separate 

business,  29J . 
agent's  authority  i.~  a  question  for  the  jury,  362,  363. 
so  is,  what  is  a  reasonable  time  for  filling  a  blank  bill,  183. 
so  what  constitutes  performance  of  a  condition,  95,  229. 
delivery  of  note  or  bill  question  tor  the  .jury,  225. 
so  is  memoranda  as  part  of  a  note,  intention  to  make,  is  a,  123. 
so  the  circumstances  of  making,  a  question  for  the  jury,  190. 


704  INDEX. 

Reference  is  to  Sections. 

LaW  MEKCHANT,  3 

is  of  more  universal  authority  than  the  common  iaw  of  England,  1. 
applies  to  what  instruments,  1.  f. 

presumption  as  to,  34,  47.  '     / 

LAWFUL  MONEY, 

explainable  by  parol  evidence,  103. 

LEGAL  TENDER  ACT. 
decisions  on,  98. 
See  Tender. 

LETTERS  OF  CREDIT, 

denned,  10. 

general  or  special,  10. 

an  indorsement  in  blank  is,  ^73. 

LEX  DOMICILII, 

See  Conflict  of  Laws. 

LEX  FORI, 

prima  facie  the  foreign  law,  34,  41. 
See  Conflict  of  Laws. 

LEX  LOCI  CONTRACTUS, 
See  Conflict  of  Laws. 

LEX  LOCI  RE  I  SIT.E, 
See  Conflict  of  Laws. 

LEX  LOCI  SOLUTIONIS, 

Sec  Conflict  of  Laws. 

LEX  MERCATORIA, 
See  Law  Merchant. 

LIMITATIONS, 

See  Statute  of  Limitations. 

"  LIQUIDATION,  IN," 

a  note  signed  by  a  partnership  in,  is  sufficient  notice  of  its  dissolution,  430,  437 
Liquidating  partner : 

See  Partners  and  Partnership. 

LOST  NOTE  OR  BILL, 

not  presumed  to  be  negotiable,  173. 

so  of  a  bill  of  lading,  173  n. 

presumed  to  have  been  payable  on  demand,  119. 

LUNATICS, 

contracts  of,  are  voidable,  256. 

may  be  avoided  by  personal  representative.  256. 
guardian,  256. 
subsequent  grantee,  256. 

not  by  other  party,  256. 


INDEX.  705 

Reference  is  to  Sections. 

LUNATICS—  Continued. 

may  be  ratified,  256. 

voidable  after  inquisition,  256. 

inquisition  not  retrospective  against  a  bona  fide  holder,  256 
distinction  between  executed  and  executory  contracts,  256. 

liable  for  value  of  necessaries,  256. 

medical  services  to  wife  after  inquisition,  256. 

executor  liable  for  necessaries,  25(3. 

defense  by  lunatic,  257. 

fraud  admissible  against  a  bona  fide  holder,  257. 
party  must  be  re-instated  in  his  former  position,  257. 
the  rule  not  allowing  one  to  "stultify  himself"  abandoned,  257. 
accommodation  indorsement  is  a  good  defense  against  a  bona  fide  holder,  257. 
the  insanity  of  an  indorser  may  be  shown  by  the  maker  in  defense  at  suit  of  an 

indorsee,  257. 
insanity,  what,  258. 
how  pleaded,  259. 
evidence,  259. 
prima  facie  sane,  259. 
how  rebutted,  259. 
inquisition,  how  far  conclusive,  260. 
cannot  be  an  agent,  352. 

M. 

MADE, 

implies  a  delivery,  217. 

MAKER, 

who,  7. 

note  may  be  made  payable  to,  own  order,  7,  153. 
liable  both  as  maker  and  indorser,  153. 
maker  agent  of  payee,  383. 

using  fictitious  name,  383. 

not  individually  liable  to  a  bona  fide  holder,  383. 

MAKER'S  NAME, 

to  a  note  or  bill,  148. 

must  be  certain,  148. 

cannot  be  in  the  alternative,  148. 

fictitious,  effect  of,  148. 

so  indorsed,  acceptor  liable,  148. 

joint  and  several  note,  149. 

MARGINAL  FIGURES, 
expressing  amount,  105. 

different  from  words  expressing  amount,  latter  controls,  105. 
no  part  of  the  instrument,  105. 
foreign  statutes,  105. 
limiting  amount  to  be  filled,  187. 

blank  amount,  187. 
tearing  off  and  filling  larger  amount  equivalent  to  alteration,  187. 

2u 


706  INDEX. 

Reference  is  to  Sections. 

MAKK, 

is  a  sufficient  signing,  64. 
American  statutes,  64. 
foreign  statutes,  64. 

MARRIED  WOMEN, 

capacity  at  common  law,  279,  282. 

by  foreign  law,  281. 

what  law  determines,  281. 

capacity  determined  by  lex  loci  contractus,  24,  35. 

presumptions  as  to  transfer  by  wife,  34. 

bill  or  note  at  common  law  invalid,  282,  284. 

though  given  for  land,  284. 
joint  note  with  husband  equivalent  to  note  of  husband,  284. 
for  household  goods,  invalid,  284. 

promise  as  widow,  284. 
joint  note  without  evidence  for  separate  benefit,  284. 

recitals  that  it  was  given  for  farm  supplies,  284. 

not  estopped  by  false  representations,  272,  282. 

Liability  by  American  statutes: 

if  separated  from  husband,  279. 
when  husband  is  insane,  279 
in  prison,  279. 

abandoned  by  husband,  279. 

a  sole  trader,  279. 

neglected  by  husband,  279. 
for  necessaries,  '27 'J. 
for  farm  supplies,  279. 
for  ante-nuptial  debts,  279,  280. 
for  separate  estate,  279,  280. 
for  separate  benefit,  279. 
for  money  borrowed,  284. 
for  property  purchased,  284,  286. 
tuition  of  daughter,  284. 
as  feme  sole,  279. 
as  surety,  279. 
as  guarantor,  279. 

for  husband,  279. 
partnership  note,  285. 

Liability  by  recent  American  statutes,  283. 
bill  or  note  for  accommodation,  283. 
joint  note  chargeable  on  separate  estate,  283. 
separate  benefit,  283.  2S4. 
farm  benefit,  283. 
ante-nuptial  debt,  2S3. 
joint  note  of  wife,  283. 
goods  purchased,  283.  284. 


INDEX.  707 

Reference  is  to  Sections. 

MARRIED  WOMEN—  Continued. 

bill  or  note  made  after  husband's  death  by  an  attorney  acting  under  the 

joint  power  of  husband  and  wife,  287  n. 
joint  note,  liability  not  discharged  by  subsequent  divorce,  287. 
not  equivalent  to  a  payment  if  void,  287. 
if  void  at  law,  a  collateral  mortgage  given  to  secure  it  on  separate  estate 

may  be  valid,  287. 
not  void  per  se;  must  be  specially  pleaded,  287. 
necessaries  or  separate  benefit  must  be  averred,  287. 
bill  or  note  prima  facie  invali  1  in  New  York,  285. 

by  husband  as  agent  without  separate  benefit,  not  binding,  285. 
though  represented  by  him  for  separate  benefit,  285. 
acceptance  by,  her  debt  to  drawer  binding,  285. 
bill  or  note  part  goods  purchased,  part  debt  of  husband,  285. 
money  borrowed  to  assist  husband,  285. 
property  purchased  and  separate  estate,  286. 
work  done  on  joint  property,  286. 
if  authorized  by  court  (Louisiana!,  obtained  by  fraud  and  for  husband's  debt, 
admissible  as  a  defense,  286. 

Action  by  or  against,  298,  320,  321. 
husband  and  wife,  320. 

absent  seven  years,  320. 
alone,  320. 
set-off  against  wife,  320. 

Payment  to,  321. 

payment  to  husband,  321. 
release  by  husband,  321. 

Transfer  by  husband,  322. 

husband's  bankrupt  assignee,  322. 
attachment  against  husband,  322,  323. 
note  to,  prima  facie  separate  property  in  Alabama,  323. 
when  separate  estate,  323. 
not  subject  to  set-off  against  husband,  323. 
subject  to  set-off  ante-nuptial  debts,  323. 
ante-nuptial  debts  husband  liable  for,  at  common  law,  324. 
until  her  death,  324. 
execution  as  to  property  of  wife's,  324. 
liable  for  ante-nuptial  debts  after  husband's  death,  324. 
survivorship  in  choses  in  action,  325. 

clear  of  defense  against  husband,  325. 
transfer  by  husband  without  possession,  325. 
prima  facie  on  note  to  wife,  325. 
though  in  his  possession,  325. 

Redaction  to  possession,  326. 
by  indoi-sement.  326. 
pledge,  326. 


708  INDEX. 

Reference  is  to  Sections. 

MAKRIED  WOMEN— Continued. 
award  to  husband,  326. 
question  for  the  jury,  326. 
husband  has  no  right  to  reduce  to  possession  in  New  Jersey,  326. 

^Promise  after  death  of  husband,  293. 

contract  during  coverture  no  consideration  at  common  law,  293. 

note  as  wife,  293. 
note  as  wife  for  goods  purchased  as  sole  trader,  293. 

as  sole  trader  and  for  forbearance,  293. 

surety  for  husband,  293. 

joint  note  for  ante-nuptial  debt,  293. 

without  knowledge  of  liability  no  liability  is  c»eated,  293. 
goods  purchased  while  living  separate  and  in  adultery,  293. 
by  ratification  keeping   goods  purchased    by  her  from  her  husband's 
administrator,  293. 

in  equity  for  benefit  of  her  separate  estate,  293. 

Promise  after  divorce : 

goods  purchased  as  wife,  293. 

note  for  necessaries  on  separate  credit,  living  separate  and  alone,  293. 

Defenses  : 

defense  of  coverture  is  personal  to  her  or  her  representatives,  294. 

indorser  of  note  cannot  set  up  in  defense  the  coverture  of  the  maker,  294. 

even  though  the  holder  had  knowledge  of  the  fact,  294. 

nor  guarantor,  294. 

indorser's  coverture  no  defense  to  subsequent  indorser,  294. 

nor  the  drawer  to  coverture  of  the  indorser,  294. 

acceptor  that  of  the  drawer  or  indorser,  294. 
nor  can  the  drawer  question  her  right  to  receive  payment  of  a  bill  made 
to  her,  294. 

Liability  of  while  living  separate  from  husband,  295. 

at  common  law,  husband   must  be  civiliter  mortuus,  banished  or  trans- 
ported, 295. 
living  in  another  state,  295. 
with  separate  maintenance,  295. 
divorced  a  mensa  el  thoro,  295. 
with  separate  estate,  296. 
separate  benefit  immaterial,  299. 

in  equity,  296. 
intention  to  charge  prima,  facie,  296. 
sole  trader  and  in  adultery,  297. 

and  husband  alien  abroad,  297. 
husband's  consent  presumed,  297. 
intention  to  charge  separate  estate  presumed,  297. 
husband  in  public  service  and  alien  abroad,  297. 
abandoned  by  husband  and  sole  trader,  298. 

note  for  necessaries  on  her  credit,  298. 


INDEX.  70U 

Reference  is  to  Sections. 
MARRIED  WOMEN— Gmtinued. 

Sole  trader: 

intention  implied  to  charge  self,  299. 

husband  abroad,  consent  presumed,  299. 

husband  consents,  separate  estate  liable,  299. 

separate  estate  or  separate  business  must  appear,  299. 

note  by  her  binding,  299. 

expressed  for  purchase  for  sole  business,  299. 

and  upon  her  indorsement  as  a  sole  trader,  299. 

not  for  money  loaned,  299. 

though  subsequently  divorced,  299. 
goods  purchased  without  intention  to  charge,  299. 

Separate  estate  in  equity,  300. 

equivalent  to  a  feme  scle,  300. 

indorsement  to  wife  prima  facie  separate  estate,  300. 

though  for  loan  by  husband,  300. 

not  liable  for  husband's  debts,  300. 

disposal  of  separate  estate  restricted,  301. 

power  of  disposal  as  feme  sole,  301. 

express  power  necessary,  301. 

power  not  included  in  note,  301. 

instrument  creating  must  be  followed,  301. 

Separate  estate  : 

contracts  as  to  separate  estate,  280. 

American  statutes,  280. 

foreign  statutes,  281. 

note  payable  "out  of  my  separate  estate"  admits  that  she  has  such 

estate,  292. 
accommodation  note,  express  charge,  292. 
intention  to  charge  implied,  292. 
rebutted  by  renewal  by  husband  aione,  292. 
express  charge,  302. 
liability  restrained  by  statute,  302. 
what  benefit  sufficient,  302. 
joint  note  with  husband,  302. 
debts  need  not  be  specifically  enumerated,  302. 
wife's  note  for  husband's  note  originally  given  for  children's  clothes  with 

intention  to  charge,  302. 
indorsement  of  her  husband's  note  with  intention  to  charge  it  though 

not  expressed,  302. 
a  note  payable  "  from  my  personal  estate  "  is  a  charge  of  her,  302. 
express  charge  does  not  affect  negotiability,  303. 
an  indorsement  with  express  charge  is  not  a  mortgage,  303. 
under  duress  not  binding  at  the  suit  of  a  bona  fide  holder,  303. 
not  having  a  separate  estate  she  cannot  be  bound  for  the  debt  of  a  third 

person,  303. 


710  INDEX. 

Reference  is  to  Sections. 

MARRIED  WOMEN—  Continued. 

a  memorandum  to  a  note  charging  her  separate  estate  is  no  part  of  the 
note,  303. 

Express  charge: 

necessary  for  note,  303. 
for  ante-nuptial  debts,  303. 
intention  must  appear,  284,  303. 
may  be  in  instrument  attached,  303. 
collateral  mortgage,  303. 

Implied  charge  : 

signature  by  husband  as  "  acting  trustee,"  note  for  necessaries  to  wife 

before  marriage,  304. 
intention  inferred  from  direct  benefit,  284,  304. 
agreement  to  pay  out  of  separate  estate,  304. 
acknowledgment  from  correctness  of  account  against  her,  304. 
agreement  to  pay  for  nursing  and  care  of  her  father,  304. 
charged  implied  from  living  separate,  305. 

giving  note  or  bill,  306. 
joint  note  of  wife  for  debt  of  husband,  306. 

not  enforced  after  divorce,  306  n. 
restricted  to  cases  of  benefit,  307. 

not  if  for  accommodation  of  husband  though  joint  note,  307. 
bound  by  contract  for  separate  benefit,  307. 
express  charge  or  separate  benefit  must  be  proved,  307. 
intention  to  charge  prima  facie  from  note  for  property  purchased,  307 
joint  note  ar.d  mortgage  for  property  purchased,  307. 
not  merged  in  judgment  against  husband  only  on  note,  307  n. 
charged  prima  facie  credit  to  separate  estate,  308. 
without  benefit  no  intention  to  charge,  308. 

separate  estate  liable  in  equity  for  separate  benefit  (unchanged  in  New 
York),  309. 

on  draft,  309. 

joint  note  with  husband,  309. 
charge  or  benefit  in  note  in  joint  business  must  be  proved,  309. 
charged  presumed  from  benefit  though  joint  note,  310. 

not  joint  note  without  benefit,  310. 
separate  property  purchased,  311. 

discharged  by  retransfer,  311. 

money  borrowed,  311. 

farm  supplies  to  her  by  husband  as  her  agent,  311. 
credit  to  separate  estate  for  farm  supplies,  308. 

for  goods  purchased,  308. 
note  discounted,  husband  living  abroad,  308. 
'  though  loaned  to  husband,  309. 

separate  property  managed  by  husband,  309. 
husband's  note  was  given  for  the  purchase,  309*. 

on  covenants  in  her  deed,  309. 


INDEX.  711 

Reference  is  to  Sections. 

MARKIED  WOMEN—  Continued. 

guaranty  in  transfer  of  mortgage,  express  charge  or  separate  benefit 
must  be  proved,  309. 
separate  benefit  not  presumed  from  separate  estate,  280  n. 

Separate  benefit  must  appear  : 

if  paid  at  wife's  request,  not  sufficient,  312. 

nor  for  money  expressed  to  have  been  loaned  her,  312. 

"value  received"  not  sufficient,  312. 

such  defense  cannot  be  set  up  in  Louisiana  against  a  bona  fide  holder, 

312. 
when  the  money  is  paid  to  husband,  312. 
separate  benefit  presumption  to  the  contrary,  313. 
not  liable  as  surety,  313. 
implied  charge,  313. 
express  charge,  313. 
not  without  benefit  or  charge,  313. 
estopped  by  fraud,  313. 
implied  charge  from  living  separate  from  husband,  305. 

from  being  a  sole  trader,  305. 
from  giving  note  or  bill,  306. 
though  executed  in  blank,  306. 
from  indorsement,  306. 
Wisconsin  statute,  306. 

liable  in  equity,  intention  to  charge  presumed,  306. 
joint  note  of  wife  with  husband,  306. 

though  to  pay  judgment  against  husband,  306. 

As  surety,  289  et  seq. 

cannot  be  surety  at  common  law,  289. 

American  statutes,  291. 

joint  note  surety  or  separate  business  is  a  question  for  the  jury,  291. 

accommodation  note,  291. 

with  express  charge,  292. 

without  separate  benefit  or  charge,  292. 

for  discontinuance  of  suit  against  husband,  290. 

payment  of  a  judgment,  290. 

though  separate  estate,  liable  as  surety,  290. 

to  manage  her  separate  property,  290. 

defense  admissible,  though  authorized  by  judge,  290. 

note  for  loan  to  pay  husband's  debts,  289. 

husband's  debt,  lender  knowing  the  object  of  the  loan,  289. 

and  subsequent  renewal  as  an  indorser  for  goods  purchased,  290. 

with  collateral  mortgage,  290. 

mortgage  as  collateral  to  husband's  note,  judgment   cannot   be  against 

her,  290. 
separate  estate  not  liable  in  equity,  289. 

in  New  York  without  separate  estate  and  express  charge,  289. 
not  liable  on  separate  estate,  289. 
not  part  debt  of  husband,  part  property  purchased,  289. 


712 


INDEX. 


Reference  is  to  Sections. 

MAKRIED  WOMEN— Continued. 

joint  note  as  surety  for  husband  invalid,  289. 

and  express  charge,  289. 
wife's  note  for  husband  for  farm  supplies,  290. 

Indorsement  : 

not  binding  at  common  law,  2S8. 

American  statutes,  288. 
not  equivalent  to  a  transfer  at  common  law,  288. 
after  marriage  to  confirm  previous  delivery,  288. 
may  transfer  without  liability,  288. 
transfer  if  authorized  by  husband,  288. 
such  authority  implied  from  conduct  or  ratification,  288. 
until  revoked,  payment  may  be  to  indorsee,  288. 

subsequent  promise  of  payment   to  the  indorsee,  husband's  authority 
presumed,  288. 

Agent  for  husband  implied  authority,  318. 

agency  of  husband  and  wife  for  each  other,  318. 
authority  must  be  proved  by  holder,  318. 
not  if  eloped,  318. 
implied  if  sole  trader,  318. 
payment  to,  318. 

by,  agency  must  be  shown  to  bar  statute  of  limitations,  318. 
authority  question  for  the  jury,  318. 

general  power  of  attorney  does  not  include  accommodation  paper,  318. 
to  indorse  note  for  son  in  husband's  name  does  not  include  a  joint  note 

executed  by  her  in  his  name,  as  a  joint  maker  with  another  person, 

354. 
nor  an  indorsement,  318. 
note  without  reference  to  such  authority,  318. 
partnership  note,  318. 
ratification  though  in  wife's  name,  318. 

C  hoses  in  action: 

generally  include  bill  or  note,  &c.,  319. 

at  common  law  becomes  property  of  husband,  319. 

though  given  to  her  as  her  distributive  share  of  a  deceased  relative's 

estate,  319. 
goes  to  husband,  though  a  sole  trader,  319. 

and  husband  living  separate  in  adultery,  319. 
if  reduced  to  possession,  319. 
and  survives  without  reduction  to  possession,  319. 
ante-nuptial  debt  barred  by  statute  of  limitations  not  revived  by  hus- 
band's acknowledgment  to  pay,  319. 

Contracts  with  husband  : 
bill  or  note  void,  314. 
enforceable  in  equity,  314. 
subsequent  ratification,  314. 
indorsement  by  payee,  314. 
for  ante-nuptial  debt,  314. 
to  assignee  of  debt,  314. 


INDEX.  713 

Reference  is  to  Sections. 

MARRIED  WOMEN—  Continued. 

to  wife  or  bearer,  bearer  cannot  sue,  314. 
though  for  money  used  by  him,  314. 

on  separate  estate,  314. 
separate  benefit  and  intention  to  charge  must  appear,  316. 
bill  or  note  binding  in  some  of  the  United  States,  315. 
action  against  husband  after  divorce,  316. 

by  American  statute,  316. 
indorsee  may  sue,  316. 
subject  to  equitable  defenses,  316. 

subsequent  marriage  of  maker  and  payee,  effect  on  note  to  husband,  317. 
subsequent  transfer  to  husband,  317. 
husband  maker  liable  to  indorsee  of  wife,  317. 
transfer  between  husband  and  wife,  317. 
for  collection  only,  317. 
subject  to  debts  of  transferer,  317. 
wife  payee  for  debt  due  husband,  317. 

MATURITY, 

how  indicated,  16. 

"usances,"  16. 

"  after  date,"  16. 

"at  sight,"  16. 

"on  demand,"  16. 

of  demand  note,  by  statute,  16. 

foreign  statutes,  109. 

American  statutes,  109. 

sight  bills,  109 

by  given  day,  110. 

on  or  before  given  day,  110. 

reckoned  from  issue  if  no  date,  110. 

not  if  post-dated,  110. 
when  in  funds,  &c,  onus  on  holder,  111. 
as  soon  as  property  can  be  sold,  112. 

parol  evidence  inadmissible  to  show  maturity,  when  payable  in  installments,  114  n. 
on  settlement  of  account  equivalent  to  a  reasonable  time,  115  n. 
on  demand,  117. 

principal  and  interest  different,  118,  119. 
demand  if  no  time  expressed,  119. 

day  after  date  if  no  time  expressed  of  a  post-dated  note,  119. 
lost  note  presumed  to  be  payable  on  demand,  119. 

due  bill  for  delivery  of  sheep,  matures  within  a  "reasonable  time,"  119. 
different  time  cannot  be  proved  by  parol,  119. 
an  agreement  after  due  to  pay  "ten  per  cent,  on  this  bill  until  paid,"  does  not 

extend  the  time  by  implication,  119. 
time  of  payment  cannot  be  Taried  by  parol,  120. 
extending  time  by  collateral  memoranda,  196. 
reckoned  from  date,  224. 

delivery  if  no  date,  224. 
-"MAY," 

equivalent  to  shall,  342. 


714  INDEX. 

Reference  is  to  Sections. 

MEMORANDA, 

when  part  of  the  note,  101,  190. 

place  of  payment,  123,  193. 

not  part  of  bill,  123,  193. 

intention  question  for  jury,  123. 

additions  a  material  alteration,  123. 

need  not  be  averred,  190  n. 

circumstances  of  making  question  for  the  jury,  190. 

parol  evidence  admissible,  190. 

no  part  of  bill  or  note  if  after  making,  190. 

conditions  in  part  of  the  bill  or  note,  191. 

alteration  avoids,  191. 

expressing  that  it  was  given  for  a  patent,  191. 

agreement  not  to  sell,  191. 

desire  for  indulgence  not,  191. 

Time  of  payment  : 

unnecessary  to  present  it  for  payment  at  place  mentioned  in  the,  123  nt 
126. 

character  and  effect,  192. 

on  envelope  enclosing  note,  192  n. 

rejected  if  repugnant,  192. 
Amount,  194. 

marginal  figures  explaining  omissions,  194. 

controlled  by  the  body  of  the  instrument,  194. 

erasure  is  an  alteration,  194. 

alone  insufficient  to  support  a  recovery  at  law,  194  n. 
currency,  195. 
consideration,  195. 
interest,  195. 
as  to  collaterals,  196. 

not  equivalent  to  a  notice  of  agreement  for  deposit  of  collaterals,  196. 
waiver  of  demand  and  notice  of  protest,  196. 
express  charge  of  wife's  separate  estate  is  a  part  of  the  note,  303. 

MERCHANTS, 

parties  to  commercial  paper  need  not  be,  245. 

MISNOMER, 

payee  intended  may  sue,  161. 

parol  evidence  admissible  to  explain,  165. 

person  not  intended  cannot  transfer,  166,  168. 

declaration  on  judgment  of,  166  n. 

immaterial  if  identity  is  certain  (drawee),  171. 

MISSPELLING, 

in  the  indorsement  of  the  payee's  name  immaterial,  165. 

MISTAKE, 

in  amount  may  be  corrected,  106. 

an  omission  of  the  words  "or  order"  may  be  corrected,  177.  " 

a  fresh  stamp  not  necessary  in  England,  177. 

"  or  order,"  omission  in  pleading  immaterial,  177. 


INDEX.  7  I  iJ 

Reference  is  to  Sections. 

MISTAKE— Continued. 

immaterial  if  there  is  no  doubt  in  amount  payable,  104. 
cured  or  aided  by  marginal  figures,  105. 
omission  of  seal  may  be  shown  by  parol  evidence,  73. 
date  may  be  shown  by  parol  evidence,  78. 

MUNICIPAL  BONDS, 
negotiable,  74,  336. 

bona  fide  holder  takes  clear  of  defenses,  336. 
are  to  be  regarded  as  commercial  paper,  336. 
holders  are  necessary  parties  to  a  suit  in  equity  by  taxpayers  to  obtain  injunction 

against  collection  of  taxes  for  their  payment,  336. 
invalid  if  issued  without  authority  though  negotiable  in  form,  343. 
such  want  of  authority  is  a  defense  against  all  holders,  343. 
recitals  in  the  bonds,  effect  of,  345. 

MUNICIPAL  COEPOKATIONS, 

have  many  of  the  powers  of  private  corporations,  336. 

exist  not  for  the  purpose  of  trade,  336. 

have  such  powers  as  are  incidental  and  necessary  to  their  existence  as  such,  336. 

formerly  held  in  England  could  only  contract  under  seal,  336. 

in  the  United  States  may  bind  themselves  by  simple  contracts,  336. 

so  as  to  unsealed  coupons,  336  n. 

cannot  give  a  guaranty  of  commercial  paper,  336  n. 

though  might  have  the  power  to  receive  or  dispose  of  it,  336  n. 

may  give  a  negotiable  note  under  seal,  336. 

note  to  officer  is  to  the  corporation,  157. 

may  sue  in  the  name  of  his  successor,  157. 

Express  authority  when  necessary,  338. 

have  no  power  to  borrow  money,  338. 
or  give  a  bill  or  note  for  its  payment,  338. 
without  express  statutory  authority,  338. 
or  clearly  implied  in  the  exercise  of  express  powers,  338. 
not  liable  for  such  loan  on  such  paper,  338. 
though  money  expended  for  municipal  purposes,  338. 
cannot  issue  bonds,  338. 
without  express  authority,  338. 
even  to  raise  money  to  pay  its  lawful  debts,  338. 

such  bonds  do  not  possess  negotiability,  unless  issued   under  such  au- 
thority, 338  n. 

Implied  authority,  339. 

police  powers  given  in  a  city  charter  will  not  authorize  it  to  issue  bonds 

for  building. a  plank  road,  339. 
such  bonds  void  in  hands  of  bona  fide  holder,  339. 

power  "to  establish  and  regulate   markets"  is  a  power  to  purchase  a 
market  site,  339. 

and  to  give  bonds  for  it,  339. 
so  in  New  Hampshire  the  selectmen  of  a  town  could  give  a  promissory 
note  for  the  enlistment  of  soldiers  during  the  war,  339. 


716  INDEX. 

Reference  is  to  Sections. 

MUNICIPAL  CORPORATIONS— Ciwrfiuuw?. 

the  presumption  was  in  favor  of  their  authority  to  do  so,  339. 

have  no  power  to  contract  debts,  339. 

or  issue  securities  in  aid  of  extraneous  objects,  339. 

cannot  issue  bonds  to  aid  in  the  construction  of  a  railroad,  339. 

or  to  pay  for  a  subscription  to  its  stock,  339. 
not  expressly  authorized,  339. 

a  power  to  contract  a  debt  implies  a  power  to  borrow  money  for  like 
purpose,  339. 

and  to  make  commercial  paper  for  its  payment,  339. 

and  this  proposition  has  been  applied  to,  339. 

condemned  by  Judges  Daniel  and  Dillon,  339. 

though  supported  by  decided  cases,  339. 

an  incorporated  school  district,  with  express  power  to  borrow  money  for 
the  erection  of  a  school  building,  has  power  to  secure  its  payment  by 
a  promissory  note,  339. 

the  burden  of  proving  such  authority  is  on  the  holder  of  note,  339  n. 

may  give  a  note  for  the  purpose  of  paying  a  debt  incurred  for  such 
building,  339. 

may  give  its  negotiable  bonds  under  an  authority  to  issue  bonds  to  aid 
the  construction  of  a  railroad  company,  339. 

and  the  validity  of  such  bond  is  not  affected  by  the  fact  of  the  interest 
being  made  payable  at  a  place  outside  of  the  state,  339  n. 

and  when  the  power  to  borrow  money  is  expressly  given,  it  has  inci- 
dentally the  power  to  issue  bonds  or  other  evidence  of  debt,  339. 

so  if  it  can  create  a  debt  for  paving  and  grading  streets,  it  may,  without 
express  authority,  issue  bonds  for  the  same  object,  339. 

so  it  may  hire  rooms  for  the  common  council  and  give  its  note  in  pay- 
ment of  the  rent,  339. 

but  county  commissioners,  authorized  by  statute  to  provide  for  the  erec- 
tion of  public  buildings,  cannot  issue  negotiable  bonds  for  that  purpose 
without  further  authority,  339. 

to  issue  negotiable  bonds,  authority  must  be  either  expressly  given  or 
clearly  implied,  340. 

an  authority  to  purchase,  build  and  take  stock  in  internal  improvements 
implies  authority  to  give  a  negotiable  bond  in  payment,  339. 

Distinction  of  negotiable  from  non-negotiable  instruments  : 
in  their  power  to  issue,  340. 

See    Negotiable,    Negotiability — Non-negotiable    Instru- 
ments. 

Statutory  requirements,  341. 

statutory  requirements  must  be  strictly  followed,  341,  342. 

if  comptroller's  warrant  has  a  particular  form  prescribed,  that  form  is 
necessary  to  its  validity,  341. 

if  authorized  to  issue  a  note,  a  bond  is  unauthorized,  341. 

or  power  to  issue  "county  orders,"  a  bill  or  note  will  not  be  included,  341 

a  twenty-year  bond  will  not  do  for  a  ten-year,  341. 

though  such  authority  will  do  for  a  bond  payable  in  less  than  the  au- 
thorized time,  341. 


INDEX.  717 

Reference  is  to  Sections. 

MUNICIPAL  CORPORATIONS— Continued. 

railroad  charter  that  "  it  shall  be  lawful  for  the  agent  of  any  corporate 
body  to  subscribe,"  &c,  gives  no  authority  to  subscribe  for  stock  and 
issue  its  bonds  in  payment,  341. 

but  if  authorized  to  "  borrow  money  for  any  public  purpose,"  will  enable 
it  to  borrow  money  in  aid  of  a  railroad  company,  341. 

and  issue  its  bonds  for  that  purpose,  341. 

a  power  to  pay  by  "  certificates  of  loan  "  is  equivalent  to  a  power  to  give 
coupon  bonds,  341. 

so,  engraved  bonds  may  be  issued  under  an  authority  for  printed  bonds, 
341. 

a  statutory  provision  that,  "may"  obtain  such  consent,  is  a  requirement 
that  it  "shall"  do  so,  342. 

if  statute  provides  that  a  "strip"  of  the  county  may  vote  to  take  stock 
will  not  authorize  the  county  to  create  a  debt  and  issue  its  bonds  there- 
for, 342. 

when  the  statute  falls  under  a  constitutional  prohibition,  342. 
such  bonds  are  void,  342. 

does  not  apply  to  bonds  subsequently  issued  under  an  enabling  act,  342. 

and  it  does  not  reach  the  case  of  a  branch  road  and  bond  issued  therefor 

under  the  charter  granted  previous  to  the  adoption  of  the  constitutional 
provision,  342. 

but  it  will  reach  subsequent  amendments  of  such  earlier  statutes,  342. 

as  well  as  all  subsequently  issued  bonds,  342. 

when  there  is  no  question  of  an  existing  vested  right,  342. 

a  statute  relating  to  existing  county  warrants  and  requiring  them  to  be 
publicly  registered  before  a  certain  future  day,  barring  all  claim  there- 
after under  them  if  not  so  registered,  is  constitutional  and  valid,  342. 

Ratification  : 

the  legislature  may  ratify  any  contract  of,  347. 
which  is  irregular,  347. 
or  ultra  vires,  347. 
if  it  could  originally  have  authorized  it,  347. 

bonds  authorized  with  interest  payable  annually,  but  made  payable  semi- 
annually, 347. 
but  cannot  ratify  bonds  which  are  void  for  want  of  the  constitutional 

limitation  of  the  amount  of  idebtedness  in  the  authorizing  act,  347. 
or  for  want  of  the  consent  of  the  taxpayers  to  the  bonds  that  were 
issued  as  required  by  law,  347. 

Popxdar  consent  required: 

a  mere  vote  of  the  people  gives  no  authority,  342. 

if  any  proof  is  made  as  to  obtaining  the  consent  of  taxpayers  it  will  be 
presumed  sufficient,  317. 

and  if  made  according  to  the  requirements  of  the  statute  it  will  be  con- 
clusive in  favor  of  a  bona  fide  holder,  347. 

tile  judgment  exercised  by  the  official  executing  the  bond  is  in  such  case 
conclusive  upon  the,  347. 


718  INDEX. 

Reference  is  to  Sections. 

MUNICIPAL  CORPORATIONS  -Continued. 

Defenses : 

unlawful  issue,  343. 
irregular  execution,  344. 
estoppel  by  recitals,  345. 

corporate  acts,  346. 
See  Defenses — Estoppel. 

Municipal  officers,  372. 
parish  officers,  372. 
township  trustees,  372. 
board  of  supervisors,  372. 
selectmen  of  the  town,  372. 
township  committee,  372. 
county  judge,  372. 
auditor,  372. 

county  commissioners,  372. 
mayor,  372. 

the  ordinary  rules  of  majority  and  quorum  govern  an  action  of  corpo- 
rate bodies,  372. 

MUNICIPAL  WARRANTS, 
when  negotiable,  91,  337. 
when  not  negotiable,  337,  389. 

authority  of  the  officer  giving,  is  always  open  to  examination,  337. 
if  issued  ultra  vires  cannot  recover,  337. 

cannot  be  recovered  in  replevin  from  a  bona  fide  holder,  337. 
liable  against  a  bona  fide  holder  to  the  defense  of  being  issued  without  authority, 

389. 
though  they  are  made  payable  to  bearer,  389. 
and  especially  so  when  made  payable  out  of  some  particular  fund,  specifying  a 

road  tax  or  other  public  fund,  389. 

N. 

NAME, 

Parly  to  be  bound : 

must  appear,  129. 

in  instrument  or  signature,  129. 

cannot  be  in  the  alternative  as  "  J.  C.  or  else  H.  B.,"  129. 

assumed  name  sufficient,  129. 

initials  sufficient,  129. 

American  statutes,  129. 

foreign  statutes,  129. 

Partners  and  partnership: 

partners  should  sign  firm  name,  130. 

effect  of  signing  in  individual  name,  130. 

partnership  name  when  the  same  as  individual  name,  130,  411,  412 

prima  facie  individual  act,  130,  412. 

accepted  by  other  partner  binds  the  firm,  130. 

individual  name  used  in  fraud,  partnership  not  bound,  130. 


INDEX.  719 

Reference  is  to  Sections. 

NAME — Continued. 

consideration  going  to  partnership,  130. 
partnership  drawer  individual  acceptor,  130. 
See  Partners  and  Partnership. 
Agents. 

principal  should  appear,  131. 

known  not  a  discharge  of  the  agent,  131. 
subsequent  ratification  by  principal,  principal  liable  when  disclosed,  131, 
indorsement  to  principal  by  agent,  131. 
ratification  by  principal,  principal  liable,  131  n. 
public  officers,  exceptions  to  rule,  132. 

Execution  by  agent : 

agent,  added  to  signature,  133. 
"  president,"  "secretary,"  &c,  added,  133. 
"cashier"  added,  133. 
See  Agents. 
execution  by  executors,  administrators,  &c,  134. 
signing  by  '  surety,"  134. 
assignee,  134. 
See  Administrators — Executors. 

Execution  by  corporations,  135. 

See  Agents — Corporations — Signature. 

NATUEE  OF  CONTRACT, 

governed  by  lex  loci  solutionis,  28,  37. 
lex  loci  contractus,  29. 
NEGLIGENCE, 

in  signing,  supposing  it  to  be  a  contract  of  a  different  character,  181. 
permitting  amount  to  be  increased,  187  n.,  187. 
defense  at  suit  of  a  bona  fide  holder,  187. 
alreration  discharges  the  maker,  187. 
taking  firm  note  for  individual  debt,  is  equivalent  to  gross,  418. 

NEGOTIABLE,  NEGOTIABILITY, 

what,  2,  173. 

defined,  173. 

transfer  carries  face  of  paper,  173. 

bill  of  exchange  need  not  be,  173. 

lost  bill  not  prima  facie,  173. 

what  words  necessary  to  make  it,  174. 

"order,"  "bearer,"  174. 

"assignee,"  "trustee,"  174. 
"to  order  for  my  use"  not,  175. 
if  to  "A.  or  bearer,"  175. 
to  bearer  A.  not,  175. 
enlarged  by  indorsement  to  bearer,  176. 
restricted  indorsement  to  "A.  B.  at  his  own  risk,"  176. 

indorsement  of  non-negotiable  guaranty  does  not  make  note  non-negotiable,  176 
how  affected  by  additional  stipulations,  200. 

of  interest,  200. 

exchange,  200. 


720  '  INDEX. 

Reference  is  to  Sections, 

NEGOTIABLE,  NEGOTIABILITY—  Continued. 
account  to  be  charged,  201. 
return  of  this  certificate.  201 . 
"  which  I  am  truly  thankful  for  and  shall  never  be  forgotten  by  me,"  201. 

"ne  varietur,"  201. 
waiver  of  protest,  201. 
option  or  pledge,  201  n. 

American  statutes,  211  n. 
how  affected  by  recitals  of  collateral  security,  202. 
recitals  of  collateral  security  confined  to  original  holder,  202. 
how  affected  by  recitals  relating  to  consideration,  203. 
how  affected  by  agreements  as  to  manner  of  payment,  204. 
payable  in  the  alternative,    204. 

of  money  "  or  in  goods  on  demand,"  204. 
"  to  issue  stock  for  it"  on  its  surrender,  204. 
on  default  in  installments,  204. 
before  maturity,  at  discount,  204. 
stipulation  for  attorney's  fees,  205,  206. 
how  affected  by  a  warrant  to  confess  judgment,  207. 

waiver  of  -  xemption  laws,  &c,  207. 
how  affected  by  other  additional  agreements,  208. 
to  pay  money  and  the  delivery  of  a  horse,  208. 
and  insure  the  payee's  colt,  208. 
and  all  fines  according  to  the  rule,  208. 
and  the  demands  of  the  Sick  Club,  208. 
for  other  illustrations,  see  208. 
of  bonds  prima  facie,  34. 
government  bonds  payable  to  bearer  are,  348. 
determined  by  what  law,  47. 
how  affected  by  a  seal,  70. 
by  sealed  indorsement  or  guaranty,  70. 
limited  to  notes  "without  defalcation  or  discount,"  86. 
payable  in  money,  96. 

or  stock,  at  option,  96. 
specie  or  gold,  98. 
current  funds,  99. 
currency,  99. 

current  bills  or  notes,  100. 
bank  notes,  100. 
merchandise  or  work,  100. 
certificate  of  purchase  acknowledging  amount  unpaid  and  due  is,  in  Georgia,  »y. 
warehouseman's  receipt  is,  89. 
certificate  of  deposit  is,  89. 
receipt,  when  is,  90. 
receiver's  certificate  is,  90. 
coupons  are,  91,  336. 
parish  warrants  in  Louisiana,  91  n. 
county  warrants  in  Illinois,  91  n. 
bank  deposit  book  not,  89. 
stock  certificate  not,  89. 
municipal  warrants  not,  91,  337. 


TXDEX.  721 

Reference  is  to  Sections. 

NEGOTIABLE,  NEGOTIABILITY—  Continued. 
if  made  expressly,  in  form  will  be,  337. 
municipal  corporations,  power  to  issue,  as  evidences  of  debt,  340. 

government  voucher  not,  91  n. 

if  conditional  not,  92. 

American  statutes,  92. 

effect  of  subsequent  performance  of  the  condition  on,  '.••">. 
not  if  payment  is  out  of  a  particular  fund,  107. 
unless  reference  to  such  fund  is  for  reimbursement  only,  108. 

what  are  such  illustrations,  1-08. 
not  if  time  of  payment  is  uncertain,  110. 

conditional,  111,  112  et  se<j. 
not  restricted  by  making  the  note  ''negotiable  and  payable  at  B.,"  124  n. 
not  in  Indiana  unless  payable  at  a  bank  in  that  State,  128. 
so  in  Kentucky,  128. 

when  payable  at  a  bank  the  presumption  is  in  favor  of  a  bank  of  that  State,  128. 
payee's  name  necessary,  150  n. 
detached  interest  warrant  or  coupon  not,  150. 

due  bill  without  name  of  payee,  150. 
payee's  name  in  the  alternative  or  conditional  not,  lo5. 
note  to  "A.  B.,  Trustee,"  not,  158. 
"A.  B.,  Bearer,"  not,  160. 
negotiable  at  certain  bank,  authority  to  pay  clear  of  set-off,  177. 

does  not  affect  negotiability,  177. 

"  value  received  "  unnecessary,  180. 
destroyed  by  memorandum  of  "foreign  bills,"  195. 
not  affected  by  express  charge  on  separate  estate  of  wife,  303. 

NEGOTIABLE  WOKDS, 

unnecessary  in  bill  to  king  or  government,  174. 
required  by  American  statutes,  174. 

foreign  statutes,  174. 
omitting,  in  pleadings,  177. 
if  omitted  assignee  subject  to  equities,  177. 
what  necessary,  173. 
"  order,"  "  bearer,"  when  necessary,  174. 
what  words  necessary  to  render  negotiable,  174 
equivalent  words,  174. 
or  "assigns,"  174. 
"executors  or  assigns,"  174. 
in  sealed  bonds,  174  n. 
or  transferers,  174  n. 
holder,  174. 
"or  his  order"  added  is  an  alteration,  182  n. 

NE  VARIETUR, 

does  not  affect  negotiability,  201. 

NON-NEGOTIABLE  INSTRUMENTS, 

what,  2,  177. 

assignable  at  law  and  in  equitv,  177. 

2v 


722  INDEX. 

Reference  is  to  Sections. 

NON-NEGOTIABLE   INSTRUMENTS— Continued. 
assignee  may  sue,  177. 

in  his  own  name,  177. 
not  prior  parties,  177. 

may  become  liable  to  all  subsequent  indorsees,  177. 
not  rendered  negotiable  by  indorsement,  177. 
entitled  to  grace  in  England,  177. 
contra,  in  Connecticut,  177. 

in  Indiana  non-negotiable  notes  are  assignable,  128. 
but  are  not  prima  facie  a  payment  of  prior  indebtedness,  1 28. 
municipal  corporations,  power  to  issue,  340. 

a  power  "to  use  and  sign  my  name"  will  not  include  the  execution  of  a,  with 
clause  for  attorney's  fees,  357. 

NOTICE, 

of  limit  of  agent's  authority,  388. 

Partners  and  partnership  : 

holder  with,  that  bill  was  accepted  for  debt  of  old  firm,  397. 
limited  partnership,  construction,  of,  406. 

firm  note  given  for  individual  debt  of  partner  is,  of  his  want  of  author- 
ity to  bind  the  firm,  418. 
onus  is  on  the  firm  to  prove,  417,  423. 

may  be  shown  in  evidence  under  the  general  issue,  423,  425. 
what  is  not,  of  the  accommodation  character  of  a  note,  422. 
of  dissolution  of  partnership,  436. 
when  dissolved  by  death,  is  unnecessary,  436. 
so  by  operation  of  law,  is  unnecessary,  436. 
so  by  any  event  of  public  notoriety,  is  unnecessary,  436. 
such  as  bankruptcy,  436. 
or  the  outbreak  of  a  war,  436. 
not  necessary  to  relieve  a  secret  partner  from  liability,  436. 
when  is  a  question  for  the  jury,  436. 

as  to  new  customers,  advertisement  in  the  newspapers  is  sufficient,  436. 
not  sufficient  to  old  customers,  436. 

without  proof  that  paper  is  taken  by  them,  436. 
if  customer  is  a  corporation,  not  sufficient  to  show  that  paper  has  been 

seen  by  one  of  its  directors,  136. 
implied,  437. 

note  signed  "  in  liquidation  "  sufficient,  of  dissolution,  437. 
of  blank  amount  cannot  recover  when  the  authorized  amount  has  been  exceeded, 
187. 
stock  in  name  of  "trustee,"  158  n. 
"trustee"  equivalent  to,  158. 

See  Bona  Fide  Holder — Defenses — Estoppel. 

NOTICE  OF  DISHONOE, 

required  when,  6,  18. 
corporation  bonds  do  not  require,  12. 

necessary  as  against  drawer  determined  by  lex  loci  solutionis,  39,  52. 
indorser  determined  by  lex  loci  contractus,  39,  52. 


INDEX.  723 

Reference  is  to  Sections. 

NOTICE  OF  DISHONOR— Continued. 

necessity  for  determined  by  the  lex  loci  solutionis,  31. 

law  of  the  place  of  indorsement,  31. 
time  of,  31. 
mode,  31. 

to  place  named  in  date,  81. 
effect  of  misdating,  85. 

for  non-acceptance,  not  necessary  against  drawer  of  bill  drawn  on  principal,  a 
corporation,  172. 

for  non-payment,  172. 
See  Dishonor. 

NOTICE  OF  NON-PAYMENT, 

to  indorsers  in  blank,  188. 
See  Dishonor. 


OBLIGE, 

immaterial  in  bill,  87. 


o. 


OFFICERS, 

See  Agents— Cashier — Corporations — Municipal  Corporations — Presi- 
dent— Public  Officers— Secretary — Teller — Treasurer. 

OFFSET, 

See  Set-Off. 

OMISSION, 

in  body  of  note  of  the  amount,  cared  by  marginal  figures,  105. 

in  designating  the  amount  immaterial  if  no  ambiguity,  106. 

expressing  time  of  payment  material  in  pleadings,  109,  110. 

in  designating  time  of  payment  immaterial  if  no  ambiguity,  110. 

drawee's  name  supplied  by  acceptance,  171,  185. 

"  order"  by  mistake  may  be  corrected,  177. 

no  authority  to  supply  (as  blanks),  182,  186. 

alteration,  182. 
"first,"  "second,"  &c,  liable  to  bona  fide  holder  on  all,  181  n. 
payee's  name  supplied,  185. 
drawer's  name  supplied,  185. 
maker's  name  supplied,  185. 
partial  date  supplied,  186. 
time  of  payment  supplied,  186. 
"dollars,"  &c,  supplied,  187. 

ON  ACCOUNT  OF," 

principal  indicated  by  execution,  139. 

ON  DEMAND, 

when  payable,  16. 
meaning  of,  109,  117. 
material  alteration,  119  n. 


724  INDEX. 

Reference  is  to  Sections. 

ONUS  PROBANDI, 

on  holder  to  prove  that  payee's  name  is  fictitious,  162. 

nolder  must  prove  that  he  paid  value  for  it,  if  no  drawee  named  nor  recital  of 

"value  received,"  162. 
if  proving  notice  that  paper  was  given  for  individual  debt  of  partner,  417,  418. 
consent  by  firm  to  accommodation  paper,  421. 
fraud  in  partnership  by  individual  partner,  425. 

Married  women: 

married  woman,  charge  or  benefit  must  be  proved,  307,  309,  310. 
though  expressed  for  loan  to  wife,  312. 

"value  received,"  312. 
separate  benefit,  313. 
agent  for  husband,  onus  on  holder,  318. 
See  Evidence. 
OPllON, 

when  does  not  affect  negotiability,  201  n. 

payment,  in  stock  or  money,  effect  on  negotiability,  96. 

when  conditional,  92,  93. 

ORDER, 

when  necessary  to  negotiability,  174. 

alone  a  fictitious  person  or  bearer,  174. 

not  prima  facie  negotiable,  91  n. 

designating  holder,  14. 
municipal  orders,  not  negotiable,  337. 
"county  orders"  does  not  include  a  bill  or  note,  341. 

ORDER  OF  A., 

equivalent  to  "A.  or  order,"  151,  174. 

ORDER  FOR  PAYMENT, 
what  words  necessary,  87. 

"OR  THEIR  SUCCESSORS  IN  OFFICE," 
effect  of,  in  payee's  name,  157. 

"  OWE," 

an  acknowledgment  not  a  promise,  88  n. 

P. 
PAPER  CURRENCY, 

is  a  legal  tender,  99. 

PAPER  MONEY, 

power  of  the  United  States  to  issue,  349  n. 

PAROL  EVIDENCE, 

inadmissible  to  show  special  place  of  payment,  if  none  expressed,  33v 
prove  consideration,  94. 
explain  "  lawful  money,"  103. 
"current  money,"  103. 
"  current  funds,"  103. 
show  intention  to  pay  in  work,  103. 

or  property,  103. 


INDEX.  725 

Reference  is  to  Sections. 
PAKOL  EVIDENCE-  Continued. 

vary  amount,  106. 

show  whole  note  due  on  default  in  installments,  114  n. 
vary  time  of  payment,  120. 
though  time  not  expressed,  120. 
to  show  agreement  for  time,  1 20  n. 

place  of  payment  by  contemporaneous  agreement,  124. 
separate  conditional  surely,  149. 

other  persons  than  those  named  intended  as  drawees,  171  n. 
date  in  a  note  payable  "  in  one  from  the  first  of  October  in 
cattle,  or  in  grain  the  first  of  January  following,"  186  n. 
as  against  a  bona  fide  holder  to  show  inland  bill  void  for  want  of  a 
stamp,  235. 

formerly  admissible,  235. 
admissible  to  show  Confederate  currency  intended,  102. 

December  instant  was  intended  when  payable  in  December,  110. 
as  to  explaining  the  usage  of  days  of  grace,  110. 

trade,  110. 
to  disclose  principal  signing  "A.  B.,  agent,"  133. 
to  show  principal  intended  by  charging  to  his  account,  140. 
so  discharging  agent,  140. 
to  show  relation  of  co-makers,  149. 
as  surety  for  another,  149. 
"security"  added  to  one  signature,  149. 

relation  of  co-makers  against  parties  having  such  knowledge,  149. 
but  not  against  a  lona  fide  holder,  149. 
when,  to  charge  principal,  147. 

discharge  agent,  147. 
to  show  payee  in  "  I  O  U,"  152. 

to  sustain  action  by  principal  on  unindorsed  note  to  agent,  156. 
to  show  principal  intended  by  designating  agent  payee,  157  n. 

holder  intended  by  assumed  name,  162. 
to  explain  misnomer,  165. 
even  in  sealed  bond,  165. 

to  determine  character  of  signature  across  face,  171  n. 
to  show  want  of  consideration  in  a  note  for  "  value  received,"  180. 
circumstances  of  making  memoranda,  190. 

as  to  delivery,  220. 
conditional  delivery,  230. 
undisclosed  coverture  of  maker,  282  n. 
by  a  married  woman  to  show  that  no  money  was  borrowed  by  her,  and 
the  whole  consideration  of  the  note  was  the  debt  of  her  husband,  286. 
agents'  authority  may  be  shown  by,  393. 
though  acting  under  a  special  written  authority,  393. 
agents'  statements  as  to  a  former  draft  executed  under  similar  circumstances  and 

paid  by  principal,  are  admissible  to  show  his  agency,  393. 
to  show  a  guaranty  was  intended  over  a  blank  indorsement,  373. 
that  a  blank  indorsement  was  a  receipt  or  voucher,  373. 
when  individual  and  partner  name  the  same,  may  be  shown  to  be  firm  paper,  412. 
admissible  to  show  want  of  assets  in  executor's  hands,  439. 
or  other  consideration  for  note.  439. 


726  INDEX. 

Reference  is  to  Sections. 

PARTICULAR  FUND, 

for  payment  destroys  negotiability,  107. 

if  referred  to  for  re-imlmrsement  only,  does  not  destroy  negotiability,  108. 

PARTIES, 

See  Administrator — Agents— Aliens  and  Alien  Enemies — Corpora- 
tions— Drunkenness— Executors— Farmers— Felons— Governments- - 
Guardians— Infants— Lunatics— Married  Women— Municipal  Cor- 
porations— Partners  and  Partpership— Trustkes. 

PARTNERS  AND  PARTNERSHIP, 

General  'powers,  394. 

have  power  to  give,  transfer  and  accept  bills  and  notes,  394. 

in  the  firm  name  and  business,  394. 

to  fill  in  blanks,  182. 
each  member  has  power  to  sign  the  firm  name,  394. 

so  of  indorsements,  394. 

especially  when  the  proceeds  have  gone  to  the  firm,  394  n. 
such  an  execution  of  a  note  is  supported  by  an  averment  that  it  was 
executed  by  the  firm,  394. 

not  without  proof  of  authority  to  so  sign,  394  n. 
the  firm,  as  agents,  may  lie  bound  by  one  partner  in  a  settlement  with 
principal,  :'>'.if. 

though  his  power  to  do  so  is  withheld  by  partnership  agreement,  394. 
in  Illinois  may  bind  the  firm  with  a  sealed  note,  394. 
bound  by  a  warranty  given  in  sale  of  firm  note,  394. 
by  guaranteeing  payment  for  purchases,  394. 

in  general  lias  no  such  power  to  bind  firm  as  guarantor  or  surety,  394  n. 
may  assign  and  dispose  of  the  assets  of  the  firm,  394. 
in  insolvency,  may  assign  property  to  creditors  with  preferences,  394. 
can  not  make  a  general  assignment  for  benefit  of  creditors,  394. 
cannot  bind  the  firm  by  a  submission  to  arbitration,  394. 

requirements  of  Hungary  law,  394. 

Argentine  Republic,  394. 

By  implication,  •'!'.»•">. 

the  relation  of,  is  created  in  general  by  express  contract,  395. 
though  may  \w  by  implication,  395. 

one  is  individually  liable,  by  representations  that  he  is  a,  395. 
suffering  another  to  use  his  name  as  that  of  a  firm,  395. 
not   to  one   to  whom   such  representations   have  not   been   communi- 
cated, 395. 

Dormant  and  special  partners,  39G. 

liability  of,  include  dormant  and  special  partners,  396. 

creditor  may  elect  to  hold  either,  396. 

suit  by,  not  necessary  to  join  dormant  partners,  396. 

if  the  agreement  providing  for  dormant  partners  is  dated  back,  it  will 

not  act  retrospectively,  396. 
dormant  partner  liable  after  dissolution  on  paper  renewed,  396. 


INDEX.  727 

Reference  is  to  Sections. 

PARTNERS  AND  PARTNERSHIP—  Continued. 

American  statutes,  396. 
liability  limited  by  statute,  396. 
to  capital  actually  invested,  396. 

New  partner*,  397. 

not  liable  for  debts  of  old  firm,  397. 

on  acceptance  if  taken  with  notice,  397. 
to  a  bona  fide  holder,  397. 
liable  when  new  firm  assumes  debt  of  old  firm,  397. 
not  a  promise  to  pay  the  debt  of  another,  397. 

firm  name  may  be  used  in  anticipation  of  a  partnership  being  formed,- 397. 
bound  by  a  subsequent  acceptance  by  one  partner,  397. 
note  given  in  anticipation  of  authority,  397. 

subsequently  ratified,  397. 
not  liable  on  bill  drawn  for  advances  to  one  partner  before  formation  of 

partnership,  397. 
nor  on  bill  given  by  one  partner  in  firm  name  for  money  fur  himself 
before  firm's  formation,  397. 
even  though  money  be  afterwards  used  in  partnership  business,  397. 
power  to  bind  firm  limited  to  partnership  business,  39S. 
note  given  in  individual  name  for  firm  debt  may  afterwards  be  renewed 

or  indorsed  in  firm  name,  398. 
if  given  in  firm  name,  presumption  is  that  it  was  in  partnership  busi- 
ness, 398. 
not  rebutted  by  being  payable  to  one  partner  and  discounted  by  him,  39S. 

Consent,  implied  or  presumed,  399. 

in  general  it  is  implied  from  the  business,  399. 

and  from  the  custom  of  merchants,  399. 
if  not  given  in  partnership  business,  the  consent  of  other  partners  must 

be  proved  affirmatively,  399. 
not  necessary  to  such  consent  to  have  actual  knowledge  of  the  particular 

transaction,  399. 
may  be  implied  by  acquiescence,  399. 

ratification,  399. 
receiving  the  proceeds  may  be  a  ratification,  399. 
or  delay  in  disaffirming  it,  399. 
made  by  one  firm  and  indorsed  by  another  to  one  who  is  a  common 

partner,  assent  presumed  in  bands  of  a  bona  fide  holder,  399. 
a  subsequent  promise  to  pay  a  note  made  without  authority,  does  not 

require  an  independent  consideration,  399. 
using  money  held  in  trust  by  one  partner  for  benefit  of  firm,  399. 
ratification  is  not  equivalent  to  original  authority,  399. 
liability  of  law  firm  for  note  left  for  collection,  399. 
consent  binding  only  on  member  of  firm  giving  it,  399. 
acceptance  in  name  of  firm  by  one  of  its  members,  399. 
presumption  of  assent  extends  only  to  negotiable  paper,  -100. 
does  not  include  a  non-negotiable  note,  100. 
onus  is  on  holder  or  indorsee  to  show  assent  or  ratification,  400. 
not  liable  to  one  knowing  thai  paper  was  executed  without  assent,  400. 


728  INDEX. 

Reference  is  to  Sections. 

PAKTNERS  AND  PARTNERSHIP—  Continued, 

offering  to  sign  as  indorser  while  refusing  to  sign  as  joint-maker,  400. 

bound  by  a  majority  of  the  firm,  400. 

notwithstanding  express  dissent,  400. 

dissent  of  a  partner  is  a  question  of  fact  for  jury,  400. 

his  conversation  may  be  shown  in  evidence,  400. 

declaration  that  it  was  made  for  the  benefit  of  firm  is  insufficient,  400. 

note  made  in  business  foreign  to  partnership,  401. 

will  bind  the  firm  at  suit  of  a  bona  fide  holder,  401. 

though  renewed  with  knowledge  that  it  was  given  without  assent,  401. 

members  of  a  firm  will  be  bound  jointly  on  a  joint  and  several  note,  401, 

power  to  bind  the  firm  is  not  power  to  bind  an  individual  partner,  401. 

Release  or  defense,  402. 

a  defense  against  one  partner  affects  all,  402. 

a  discharge  of  one  is  a  discharge  of  all,  402  n. 

one  partner  cannot  set  off  his  individual  debt  by  way  of  receipt  against 
a  note  held  by  his  firm,  402  n. 

if  bill  drawn  or  accepted  for  accommodation  of  one  partner  and  is  after- 
wards transferred  to  his  firm,  the  firm  cannot  recover  against  the 
drawer  or  acceptor,  402. 

Contracts  between  partners,  403. 
,     in  matters  not  relating  to  firm  business  may  contract  with  and  sue  one 
another,  403. 

cannot  sue  for  any  debt  to  which  he  would  ultimately  be  liable  to  contri- 
bute as  a  partner.  403. 

being  retained  after  dissolution  to  defend  the  firm  cannot  sue  for  a  l » i  1 1 
of  costs,  403. 

firm  cannot  sue  one  of  its  own  members,  403. 

one  cannot  sue  his  co-maker  on  a  note  when  he  is  the  sole  holder,  403. 

a  joint  and  several  note  given  by  two  makers,  of  whom  one  was  a  payee, 
both  payees  may  bring  suit  against  the  other  maker,  403. 

Action  against  partnership,  404. 

by  indorsee,  404. 

although  knowing  the  relation  of  maker  and  indorser  makes  no  differ- 
ence, 404. 

if  note  destroyed  by  accident  and  then  transferred  the  indorsee  cannot 
sue  at  law,  404  n. 

but  may  in  equity,  404  n. 

effect  of  Massachusetts  statute  making  legal  defenses  against  the  payee 
of  a  note  available  against  the  indorsee,  404. 

if  a  firm  note  to  one  member  is  indorsed  after  maturity,  and  after  disso- 
lution of  firm,  the  indorsee  takes  subject  to  the  defense  of  an  unsettled 
account  between  the  firm  and  individual  parties,  404. 

holders  of  scrip  in  joint  stock  comnanv  are  not,  404. 

may  bring  suit  agauisi  u.3  directors,  404. 

common  interest  cannot  be  pleaded  as  a  defense  of  a  suit  by  the  payee, 
404. 


INDEX.  729 

Reference  is  to  Sections. 

PAETNERS  AND  PARTNERSHIP—  Continued. 

two  firms  having  a  common  partner  may  stand  in  the  relation  of  maker 
and  indorser,  404. 

and  the  fact  that  it  is  drawn  in  the  name  of  one  firm  and  indorsed 
in  the  name  of  another,  in  the  same  handwriting,  is  the  cause  of 
suspicion,  404. 
and  the  indorsee's  knowledge  that  the  two  firms  have  a  partner  in 
common  will  not  be  notice,  404. 
drawing  and  accepting  a  bill  with  a  common  partner,  the  acceptance  is 
prima  facie  binding,  404. 

Partnerships  tlud  cannot  execute  commercial  paper,  405. 

special  partnerships  for  other  purposes  than  trade  cannot,  405. 

a  firm  of  attorneys  of  law  cannot,  405. 

although  similar  notes  are  admissible  as  evidence  of  authority,  405. 

physicians,  405. 
otherwise,  if  given  for  things  necessary  to  its  business,  405. 

stock  brokers,  405. 

tavern  keepers,  405. 

coffee  brokers,  405. 
special  partnership  for  the  purpose  of  putting  up  a  steam  saw  mill,  405. 

carriage  builders,  405. 

farmers,  405. 
especially  when  all  inference  of  such  authority  is  expressly  excluded  by 
the  articles  of  partnership,  405. 

collecting  agents  may,  405. 

mining  partnership  may,  405. 
when  knowingly  using  the  proceeds  of  such  notes  and  bills,  the  firm 

will  be  estopped  from  setting  up  the  want  of  authority,  405. 
joint-payees  not  being  partners,  406. 

if  payable  to  several  persons  jointly,  the  payees  are  not,  406. 
neither  can  bind  the  other  by  an  indorsement  for  both,  406. 
if  payable  to  A.  and  B.,  and  indorsed  in  both  names  by  A.  with  B.'s 

consent,  B.'s  interest  will  be  transferred,  406  n. 
two  persons  with  common  factor  drawing  bill  on  them,  neither  can  bind 

the  other  by  his  acceptance  of  it,  406. 
buying  a  farm  by  two  under  an  agreement  to  pay  for  it  in  notes  indorsed 

by  both,  406. 
joint-owners  of  property  are  not,  406. 
so  of  joint-owners  of  a  ship,  406. 

and  one  gives  an  acceptance  of  necessaries  furnished  for  her,  406. 
so  joint-tenants,  406. 
or  tenants  in  common,  406. 

nor  persons  having  a  common  interest  in  a  joint  undertaking,  406. 
joint-owners  of  salt  and  the  sale  of  it  is  put  in  the  hands  of  one,  are,  406. 
creditors  put  in  possession  of  property  of  their  debtor  are  not,  406. 
members  of  an  unincorporated  club  purchasing  bonds  through  an  author- 
ized agent  are,  406. 
so  far  :\s  they  authorized  or  ratified  a  transaction,  406. 


730 


INDEX. 


Reference  is  to  Sections. 


PARTNERS  AND  PARTNERSHIP—  Continued. 

knowledge  of  a  limited  or  special  partnership  may  be  interred  from  cir- 
cumstances, 406. 
from  publication  in  the  public  "Gazette,"  40G. 
will  be  constructive  notice  to  persons  dealing  with  the  firm,  406. 

Execution  by,  130,  407. 

partnership  name,  130,  407. 

the  proper  name  of  firm  should  always  be  used,  407. 

if  name  be  varied,  407. 
"  Dry  &  Everett"  not  liable  on  note  executed  as  "  Dry  &  Co.,"  407. 
"John  Blurton"  not  on  note  in  name  of  "John  Blurton  &  Co.,"  407. 
"Win.  Smith  &  Co."  not  on  an  indorsement  in  name  of  "  Win.  Smith,'r 

407. 
though  such  an  indorsement  will  affect  an  equitable  transfer,  407  n. 
and  where  the  payees  were  named  by  a  fictitious  name,  rightful  title  will 

be  presumed  in  a  bona  fide  bolder  from  possession,  407. 
a  different  name  may  be  adopted  by  the  firm,  as  "  Elias  Malone  oc  Con 

Still  House,"  for  Elias  Malone,  407. 
so  a  fictitious  name  may  be  used  by  a  firm,  407. 
a  newspaper.  "The  Opinion."  an  acceptance  by  one  partner  in  the  name 

of  "  For  the  Opinion,"  for  goods  purchased  for  the  firm,  is  binding 

upon  it,  407. 
so  signing  "for  the  use  of"  the  firm,  407. 
bill  signed  by  one  of  the  original  partners  in  name  of  the  old  firm  and 

indorsed  by  the  new  partner  for  one  of  new  firm,  in  its  new  name,  is 

binding  upon  the  original  partner,  407. 
joint  names,  408. 

sufficient  if  joint  names  of  all  the  partners  be  signed,  408. 
joint  note  by  partners  in  their  individual  names  indorsed  by  one,  insuffi- 
cient, 408. 
notwithstanding  that  such  person  had  been  found  to  be  a  partner  in  the 

transaction,  408. 
but  a  note  of  one  partner  given  for  firm  business  in  the  joint  names  of 

all,  firm  liable,  408. 
so  joint  debtors  with  subsequent  promise  to  pay,  408. 
so  of  a  note  in  firm  business  by  one  partner  in  individual  name,  408. 
though  a  circular  had  been  issued  stating  that  the  firm  business  would 

be  carried  on  in  another  name,  408. 
so  of  a  note  renewed  after  dissolution  by  a  note  signed  by  the  individual 

names  of  the  partners,  408. 
signing  by  two  individual  names  with  sureties  afterwards   renewed  by 

one  partner  with  same  sureties,  408. 
one  partner  cannot  deny  the  authority  of  another  partner  to  bind  him 

before  the  adoption  of  a  firm  name,  408. 
an  accommodation  indorser  who  has  paid  note,  signed  by  one  partner  as' 

maker  and  by  other  as  indorser,  may  recover  against  firm  for  money 

paid  for  its  use,  408. 
otherwise,  if  their  name  had  been  adopted  and  used  for  i lie  company  by 

its  consent,  409. 


INDEX.  731 

Reference  is  to  Sections. 

PARTNERS  AND  PARTNERSHIP—  Continued. 

so  an  agent  for  a  firm  cannot  by  a  note  in  the  individual  name  of  one 

partner  bind  either  the  individual  or  the  firm,  409. 
unless  that  name  is  adopted  by  the  firm,  409. 

may  show  an  adoption  of  such  name  by  the  firm,  409. 
the  individual  names  may  be  used  so  as  to  give  the  appearance  of  a  joint 

or  partnership  obligation,  409. 
one  signing  as  surety  without  being  so  indicated,  and  a  third  afterwards 

signs  as  surety,  supposing  the  first  two  to  be  joint  principals  when  in 

fact  they  are,  409. 
if  the  consideration  is  joint  the  contract  in  the  individual  names  may 

also  be  joint,  409. 
when  presumed  to  be  guarantors,  409. 
an  alteration  by  the  partner  making  note  will  not  discharge  the  partner 

indorsing  it,  409. 
a  note,  "  I  promise,"  &c,  signed  by  individual  names  of  two  or  more  is- 

either  joint  or  several,  408. 
but  a  note  signed  by  individual  names  of  partners  is  not  of  itself  evidence 

of  partnership  debt,  408. 

Individual  name — When  binding  on  firm,  130,  409. 

may  be  bound  on  note  for  firm  debt  drawn  in  individual  name.  130,  409. 

or  by  an  acceptance,  130,  409. 

or  by  indorsement  in  firm  name  of  a  bill  in  a  fictitious  name,  409. 

may  be  sufficient  to  effect  a  transfer  though  insufficient  to  bind  the  firm 

as  indorsers,  409  n. 
payable  to  two  persons  and  indorsed  by  one  in  his  own  name,  presumed 

that  the  payees  are  a  firm,  409. 

and  that  the  indorser  is  one  of  them,  409. 
agent  of  a  company  drawing  a  bill  in  his  own  name  upon  members  of 

the  company  with  their  consent,  409. 
bound  by  admissions  as  to,  130. 

Individual  name — When  not  binding  on  firm,  410. 

not  liable  on  bill  or  note  given  by  one  partner  in  his  own  name  in  pay- 
ment of  firm's  debt,  410. 

so  if  bill  is  drawn  "on  account  of"  the  firm,  410. 

when  an  intention  to  substitute  an  individual  liability  is  apparent,  410. 

if  firm  debt  be  paid  by  note  of  individual  partner  witli  outside  collateral 
given  to  secure  it.  the  firm  will  be  discharged,  410. 

several  firms  associated  together  in  a  joint  business  but  nut  registered  as 
a  company,  acceptances  drawn  in  the  joint  business,  410. 

note  by  one  partner  after  absconding  of  another,  in  renewal  of  former 
note,  absconding  partner  not  liable  on  the  renewal,  410. 

note  by  one  partner  for  proceeds  used  by  the  firm,  410. 

extends  to  cases  only  where  the  credit  has  been  given  to  the  firm,  410. 

such  name  will  be  presumed  to  have  been  taken  by  the  partners  for 
their  use,  410  n. 

such  presumption  may  be  rebutted,  410  n. 

and  an  indorser  who  has  paid  the  note  may  enforce  a  lien  for  the  claim 
against  partnership  assets  in  his  hands.  410. 


732  INDEX. 

Reference  is  to  Sections. 

PARTNERS  AND  PARTNERSHIP—  Continued. 

indorsements  in  name  of  partner  where  firm  business  was  carried  on  in 

his  name  will  bind  the  firm  only  when  made  in  firm  business,  410. 
note  for  corn  given  by  one  partner  sold  to  both  on  representation  that 

he  gave  note  on  firm's  account,  410. 
firm  maybe  liable  on  paper  executed  in  its  name  though  running"! 

promise,"  &c,  410. 
holder  may  sue  the  individual  signer  or  the  firm,  410  n. 
but  holder  cannot  prove  his  claim  in  bankruptcy  against  the  separate 

estate  of  the  individual  signer,  410  n. 
two  partners  may  become  severally  liable  upon  a  joint  and  several  note 

executed  in  firm  name  by  one  and  ratified  afterwards  by  a  confession 

of  judgment  by  the  other,  410. 

Individual  name  tame  as  firm  name,  411. 
firm  liable  on  such  paper,  411. 
addressed  to  one  partner,  accepted  by  another  partner  in  his  own  name, 

and  proceeds  go  to  the  firm,  firm  liable,  411. 
suit  by  one  partner,  for  use  of  the  firm,  unnecessary  to  join  other  partners 

as  plaintiff;,  411. 
money  obtained  on  one  partner's  individual  note  and  being  applied  to 

firm's  business,  does  not  make  the  note  a  partnership  debt,  411. 
but  a  dormant  partner  would  be  liable  in  such  case,  411. 
two  partners  doing  business  in  the  name  of  one,  surviving  dormant  part 

ner  liable  to  indorsee,  411. 
if  bank  account  is  kept  in  name  of  one  partner,  is  an  adoption  of  that 

name  by  the  firm,  and  check  will  bind  the  firm,  411. 
firm  doing  business  in  the  individual  name  of  one  and  bill  is  drawn  in 

that  name  and  accepted  by  the  other  in  his  individual  name,  411. 
separate  estate  and  not  joint  estate  liable,  411. 

Presumptions  as  to  individual  name,  412. 

when  individual  and  firm  name  the  same,  presumption  is  that  of  indi- 

dividual,  not  of  firm,  412. 
but  where  individual  partner  carried  on  no  separate  business  a  contrary 

presumption  was  had,  412  n. 
may  be  rebutted  by  parol  evidence,  412. 
partnership  and  private  business  in  the  same  individual  name  and  giving 

check  in  payment,  412. 
paper  given  to  one  carrying  on  business  in  such  a  way  is  presumably 

made  to  him  individually,  though  fairly  held  that  holder  might  elect 

between  them,  412. 
and  when  two  firms  have  the  same  name  and  bill  is  given  by  one  who  is 

a  member  of  both,  the  holder  may  elect  which  of  the  two  firms  he 

will  hold,  412. 
such  right  to  elect  may  be  controlled  by  the  circumstances  under  which 

the  paper  is  taken,  412  n. 

Partnership  paper  for  individual  debts,  413. 

one  partner  cannot  bind  the  firm  by  giving  or  indorsing  commercial 
paper  in  its  name  for  individual  debt,  413. 


INDEX.  766 

Reference  is  to  Sections. 

PARTNERS  AND  PARTNERSHIP—  Continued. 

given  for  individual  debt  is  a  good  defense  for  an  indorser,  413. 

and  if  the  partner  so  signing  die,  his  representatives  and  not  the  surviv- 
ing partner  will  be  liable,  413  n. 

to  firm  with  contemporaneous  agreement  to  individual  partner,  413. 

one  partner  cannot  bind  linn  by  agreeing  that  a  note  payable  to  tbe  firm 
shall  be  credited  on  an  individual  account  against  him,  413. 

indorsing  a  note  to  the  firm  by  one  partner,  as  part  payment  in  satisfac- 
tion of  individual  debt,  413. 

a  note  by  one  partner  in  name  of  the  firm  for  money  collected  by  him 
individually  will  not  bind  the  firm  at  suit  of  payee,  413. 

but  if  the  money  so  collected  by  him  as  agent  of  the  payee  of  note  had 
been  applied  to  the  business  of  the  firm,  his  note  in  firm  name  would 
bind  it,  413. 

a  receipt  by  one  of  the  firm  to  which  note  belongs,  for  his  individual  debt 
to  the  maker,  not  binding  upon  partnership  creditors,  413  n. 

the  onus  is  not  on  the  holder  to  show  in  the  first  instance  either  the 
application  of  the  money  or  the  assent  of  the  firm,  413. 

Consent  of  partners'  'presumption,  415. 

a  firm  note  given  for  individual  debt  of  partner  binding  on  all  partners 

consenting  thereto,  415. 
and  a  subsequent  promise  of  the  other  partner  to  pay  the  note  would  be 

sufficient  to  bind  the  firm,  415. 
without  any  new  consideration,  415. 
such  consent  may  be  implied,  415. 

payment  of  money  by  one  partner  to  the  other  for  the  purpose  of  meet- 
ing the  bill,  415. 
presumed  to  have  been  given  without  the  consent  of  the  other  partners, 

415. 
and  if  without  their  consent,  in  fraud  of  them,  415. 
character  of  the  paper  appearing  and  known  to  purchaser  the  burden  of 

proof  is  upon  him  to  show  authority  on  the  part  of  the  firm,  415. 
or  of  its  subsequent  assent,  415. 
a  note  payable  to  the  firm  of  A.  &  B.  was  indorsed  by  the  partner  A.  to 

another  firm,  A.  B.  &  Co.,  and  in  its  name  to  the  holder,  415  n. 
and  the  assent  must  be  clearly  shown,  415. 
a  mere  subsequent  promise  without  knowing  the  circumstances  will  not 

amount  to  assent,  415. 
nor  a  waiver  on  firm's  part  of  protest  for  non-payment,  415. 
or  a  failure  to  disclaim  promptly  the  liability  of  the  firm,  415. 
when  made  by  a  member  of  a  firm  for  individual  debt  and  indorsed  by 

him  with  a  guaranty  in  name  of  firm,  415. 
assent  may  be  revoked,  415. 
until  actually  used  and  the  paper  delivered,  415. 

the  burden  is  on  firm  to  show  that  it  was  given  for  individual  debt,  415. 
it  is  a  question  of  fact  for  jury,  415. 
bill  drawn  and  accepted  for  goods  sold  outside  of  the  line  of  business  of 

the  firm  has  been  accepted  by  the  consent  of  the  firm,  415. 
when  a  note  is  given  by  one  partner  for  money  borrowed  by  him.  415. 


734  INDEX. 

Reference  is  to  Sections. 

PARTNERS  AND  PARTNERSHIP—  Continued. 

Defenses,  414  et  seq. 

when  admissible,  414. 
when  inadmissible,  116. 
burden  of  proving  notice,  417 
fraud  as  a  defense,  424. 

dissolution,  when  admissible  as  a  defense,  435. 
See  Defenses. 
accommodation  paper  by  partners,  419. 
consent  to  accommodation  paper  binds  firm,  420. 
burden  of  proving  consent,  421. 

accommodation  paper,  when  binding  at  suit  of  a  bona  fide  holder,  422. 
See  Accommodation  Paper. 

violation  of  partnership  agreement,  423. 

power  of  individual  partner  to  bind   the  firm  by  giving  or  indorsing 

commercial  paper  is  often  limited  by  agreement,  423. 
such  power  is  to  be  determined  by  such  articles,  423. 
except  where  purchasers  without  notice  before  maturity  may  be  con- 
cerned, 423. 
an  acceptance  given   in  violation  of  such  agreement  in  the  hands  of 
holder  with  notice,  its  further  negotiation  may  be  restrained  by  injunc- 
tion, 423. 

Pleading  fraud: 

burden  of  proof,  425. 
See  Pleadings. 

Dissolution  of  firm,  426. 

surviving  partners,  426. 

after  dissolution  the  partners  have  no  longer  power  to  bind  the,  426,  427. 

note  made  after,  dated  before,  that  fact  may  be  shown  by  outgoing  part- 
ner, 77. 

though  such  correction  will  alter  the  maturity  of  the  note,  77  n. 

blanks  may  be  filled  after,  183. 

but  will  bind  individual  partners  signing  note  or  bill,  427. 

does  not  affect  a  firm's  liability  already  incurred,  426. 

if  dissolution  be  unknown  to  holder,  is  not  affected  by  a  subsequent 
renewal,  426. 

nor  is  the  holder  affected  by  an  agreement  between  the  partners  that  it- 
debts  should  be  paid  by  one  of  them,  426. 

action  lies  against  the  surviving  partners  only,  426. 

though  if  the  surviving,  is  a  certified  bankrupt  an  action  may  be  main- 
tained against  the  executor  of  the  deceased  partner,  426. 

a  surviving  partner  is  entitled  to  partnership  assets,  426. 

and  may  recover  possession  of  a  note  in  trover  from  the  representatives 
of  a  deceased  partner,  426. 

joint  and  several  note  of  partners,  the  administrator  of  the  deceased 
partner  is  liable  upon  it,  426. 

yet  his  separate  estate  will  be  protected  in  equity,  426. 

by  application  in  the  first  instance  of  the  partnership  assets  to  the  pay- 
ment of  such  note,  426. 


INDEX.  /  dO 

Reference  is  to  Sections. 

PAETNEES  AND  PAETNEESHIP—  Continued. 

when  debts  have  been  assumed  by  another  firm  having  one  of  the  part- 
ners of  the  original  firm,  he  has  nt>  power  to  give  a  note  in  name  of 
the  original  firm  for  its  debt,  427. 

so,  if  goods  delivered  after  dissolution  and  bill  accepted  by  partner 
receiving  the  goods,  427. 

no  difference  that  note  was  given  in  settlement  i  f  debts,  427. 

or  that  partner  agreed  to  pay  the  debts,  427. 

Implied  power*  after  dissolution,  427. 
may  be  given  by  implication,  42*. 

in  Pennsylvania  may  give  note  to  clo>e  the  business  of  the  firm,  428. 
especially  so  when  he  remains  in  possession  of  the  place  of  business  of 

the  firm  and  attends  to  the  collection  of  its  debts,  428. 
in  such  case,  may  bind  the  firm  by  note  for  settlement  of  its  debts  with* 

out  express  authority,  428. 
cannot  give  a  note  under  a  previous  power  of  attorney,  428. 
cannot  bind  the  firm  by  a  fresh   promise  to  pay  a  note  on  which  firm 

has  been  discharged,  42S. 

for  want  of  notice  of  protest,  428. 
bound  by  admissions  relating  to  a  previous  transaction  of  the  firm,  42s. 
such  admissions  may  be  used  against  all   in  an  action  of  assumpsit  for 

moneys  loaned  to  the  firm,  42s 
or  bills  accepted  by  the  plaintiff  on  his  behalf,  428. 

so  of  an  acknowledgment  as  to  the  amount  of  balance  due  the  firm,  42s. 
but  when  note  given  after  dissolution  for  a  previous  transaction  for  which 

note  was  given  such  admissions  not  admissible,  428. 
nor  an  admission  that  draft  has  been  duly  protested  will  not  amount  to 

proof  of  notice  against  the  others,  428. 

Ratification  after  dissolution,  429. 

may  receive  a  note  after  dissolution  and  discharge  the  debtor,  429. 

if  note  given  by  consent  it  is  binding,  429. 

so  bound  by  subsequent  ratification  of  note  given  without  authority,  421'. 

so  a  subsequent  promise  by  partner  to  pay  an  unauthorized  note  is  bind- 
ing on  him,  42'.». 

especially  when  on  dissolution  he  had  assumed  such  debt  and  agreed  to 
pay  it,  429. 

may  be  ratified  by  other  partners  by  making  a  payment  on  account,  429 

so  an  indorsement  may  be,  by  a  partner  knowingly  receiving  his  share 
of  the  proceeds  by  discounting  such  note,  429. 

Powers  of  liquidating  partner,  430. 

mere  authority  to  settle  the  affairs  of  a  firm  does  not  include  a  power  to 

bind  it  by  giving  commercial  paper,  430. 
nor  will  an  authority  "  to  settle  all  demands  in  favor  of,  or  against  said 

firm,"  430. 
nor  to  settle  the  business  of  the  firm  and  "  to  sign  the  name  of  the  firm 

for  that  purpose,"  430. 
he  has  no  power  to  renew  notes,  430. 
but  such  authority  may  be  implied   from   authority  to  Bettle  the  tirin'i 

business,  130. 


736 


INDEX. 


Reference  is  to  Sections. 

PARTNERS  AND  PARTNEESHIP-G>7i<«med 

not  to  bind  it  by  indorsement,  430. 

although  given  fbnthe  purpose  of  paying  firm's  debts.  430. 

but  as  to  an  indorsement  given  in  carrying  out  a  specific  prior  agree- 
ment, 430  n. 

may  take  an  acceptance  from  a  debtor,  430. 

and  no  defense  that  partners  agreed  that  another  partner  should  collect 
all  the  debts,  430. 

in  Pennsylvania  the  partner  charged  with  settling  up  the  business  of  a 
firm  after  its  dissolution  does  not  extend  to  the  others,  430. 

partners  bound  by  admission  of  authority  given,  430. 

and  the  jury  may  infer  from  such  admission  a  power  to  indorse  and  trans- 
fer a  note  belonging  to  the  firm  left  in  the  hands  of  such  partner,  430. 

and  if  partner  is  so  authorized  the  other  partners  will  be  bound  by  note 
indorsed  by  him,  430. 

does  not  extend  to  an  indorsement  of  a  new  note  in  renewal  of  a  former 
indorsement  of  the  firm,  430. 

Ante-dating,  431. 

dated  back  so  as  to  ante-date  the  dissolution  of  the  linn  is  not  binding 

upon  the  firm,  431. 
even  in  the  hands  of  a  bona  fide  holder,  431. 
drawn  before  but  not  delivered  until  after  dissolution,  431. 
indorsed  in  blank  and  transferred  after  dissolution,  presumed  to  have 

been  transferred  to  such  partner  at  its  date,  431. 
blanks  rilled  up  after  death  of  partner,  431. 

Benewah  after  dissolution,  432. 

no  power  of  renewal  after  dissolution,  432. 

though   an   agreement  of  renewal   had  been  given,  dissolution   mean- 
time, 432. 
holder  taking  the  renewal  having  had  notice  of  the  dissolution,  432. 
what  is  not  in  the  usual  course  of  such  business,  432. 

Transfer  of  assets  after  dissolution,  433. 

after  dissolution  cannot  transfer  notes  and  bills  by  indorsement,  433. 

even  though  he  be  the  liquidating  partner,  433. 

and  though  the  transfer  be  made  in  payment  of  a  debt  due  by  the  firm 

before  its  dissolution,  433. 
dissolution  by  bankruptcy  not  liable  by  indorsement  of  partner,  433. 
so  after  dissolution  by  war,  433. 

but  an  indorsement  in  firm  name  will  bind  him  individually,  433. 
signed  "  B.  &  H.,  old  firm  in  liquidation,"  433  n. 
in  England  such  indorsement  valid  as  a  transfer  though  not  binding  as 

an  indorsement,  433. 
the  same  rule  prevails  in  the  United  States  in  favor  of  holder  without 

notice,  433. 
so  of  indorsement  "  without  recourse "  made  under  express  power  to 

sell  such  paper,  433. 
such  power  may  be  implied,  433. 
and  firm  bound  by  an  agreement  to  indorse  certain  notes  received  by  its 

agent,  power  of  liquidating  partner,  433. 


INDEX.  737 

Reference  is  to  Sections. 

PARTNERS  AND  PARTNERSHIP— Continued. 

Dissolution  by  death,  434. 

power  of  surviving  partner,  434. 

suit  against  the  estate  of  deceased  partner,  good  defense  that  note  was 

executed  by  the  other  partner  after  dissolution,  434. 
the  surviving  partner  may  indorse  and  transfer  note  belonging  to  tlte 

firm,  434. 
so  in  Missouri,  he  may  transfer  such  notes,  434. 
cannot  make  an  assignment  of  partnership  assets  without  consent  of  ail 

the  surviving  members,  434. 
nor  can  one  member  indorse  a  note  without  consent  of  survivors,  434. 
hut  such  transfer  of  assets  will  dispose  of  the  interest  of  the  member  so 

transferring,  434. 
cannot  deliver  and  transfer  the  legal  title  of  firm  in  note  payable  to  the 

firm  and  indorsed  by  the  deceased  partner,  434. 
surviving  partner,  in  payment  of  a  firm  debt,  makes  a  note  payable  to 

the  firm  and  indorses  it  in  the  firm  name  to  creditor,  same  as  payable 

to  a  fictitious  person,  434. 
and  the  partner  making  the  same  will  be  liable  as  maker  in  action 

brought  on  it  against  him  by  the  payee,  434. 
cannot  renew  an  accommodation  partnership  indorsement  so  as  to  bind 

the  estate  of  a  deceased  partner,  434. 
if  authorized  to  settle  firm  debts,  he  tnay  transfer  a  note  payable  to 

bearer  by  his  indorsement  without  recourse,  434. 
and  he  may  assign  to  a  firm  creditor  a  debt  due  to  the  firm,  in  payment 

of  such  creditors  claim,  434. 
but  it  is  not  a  debt  of  the  firm  when  goods  were  ordered  before  and  not 

delivered  until  after  dissolution,  434. 
and  if  paid  by  acceptance,  the  remaining  partner  not  liable,  434. 

Notice  of  dissolulioji,  436. 

on  dissolution  must  give  notice  to  all  old  customers,  436. 

such  customers  include  only  those  who   have  dealt  directly  with  the 

firm,  436. 
does  not  include  one  who  has  dealt  in  paper  drawn  or  indorsed  by  the 

firm,  436. 
but  a  bank  which  was  in  the  habit  of  discounting  for  the  firm  indorsed 

by  it,  is,  436  n. 
any  creditor  who  has  taken  its  note  in  payment  is  a  customer,  436. 
and  public  advertisement  not  sufficient,  436. 
one  who  had  taken  previous  acceptance  is,  436. 
two  previous  transactions  are  sufficient  in  constitute  one,  436. 
in  the  absence  of  such  notice  all  the  original  parties  are  liable,  436. 
especially  when  the  business  is  carried  on  after  dissolution,  and  the  new 

debt  contracted  without  any  change  of  the  firm  name,  436. 
not  necessajy  to  give  notice  when  dissolved  by  death,  436. 
nor  by  operation  of  law,  436. 
or  by  any  act  of  public  notoriety    136. 
as  by  bankruptcy,  4:'.ti. 
or  war,  4:'.o. 

2w 


738  INDEX. 

Reference  is  to  Sections. 

PARTNERS  AND  PARTNERSHIP—  Continued. 

not  necessary  to  relieve  a  secret  partner  from  liability,  A'.W*. 

if  known  to  the  customer  it  would  be  necessary,  436. 

if  note  made  in  name  of  dormant  partner,  not  liable  t<>  one  who  did  not 

know  of  such  partner,  436. 
notice  is  a  question  for  the  jury,  436. 
so  the  sufficiency  of  a  notice  in  the  "Gazette,"  4.">»i. 
such  publication  is  admissible  in  evidence,  436. 

public  notice  in  the  newspapers  is  sufficient  notice  to  new  customers,  436. 
but  an   injunction  will  not  be  granted   for  restraining  the  use  of  the 

deceased  partner's  name,  436. 
not  sufficient  to  old  customers,  436. 
without  proof  that  the  paper  is  taken  by  them,  436. 
then  not  always  sufficient,  436  n. 
if  customer  is  a  corporation,  not  sufficient  that  paper  was  taken  or  ,-eer. 

by  one  of  its  directors,  436. 
should  be  actual  notice  or  circular,  436. 

Implied  notice,  437. 

may  be  implied  from  circumstances,  437. 

to  new  customer  may  be  shown  to  be  a  matter  of  public  notoriety,  437. 
local  notoriety  no  effect  as  notice  to  a  non-resident  customer,  437. 
not  sufficient  to  an  old  customer,  437. 

or  creditor  of  the  firm,  437. 
where  a  banking  firm  has  changed  its  firm,  notice  sufficient  from  use  of 

checks,  437. 
so  a  note  signed  "  in  liquidation,"  437. 
so  lapse  of  time,  437. 
note  drawn  eleven  years  after  dissolution  and  discounted   in  another 

State  without  inquiry,  437. 
forming  a  new  firm  is  not  sufficient,  437. 

mere  fact  that  store  had  been  transferred  and  firm  had  ceased  to  do  busi- 
ness is  not  sufficient,  437. 
even  to  one  living  in  the  same  place,  437. 

attorney  drawing  deed  of  dissolution  though  not  executed,  is  sufficient 
r  notice  to  him  of,  437. 

such  notice  may  be  defeated  by  the  conduct  of  the  parties  who  seek  the 

benefit  of  it,  437. 
where  firm  name  has  been  left  over  the  door,  437. 
may  be  liable  to  a  bona  Jicte  indorsee,  437. 
so  where  retiring  partner  said  his  name  would  continue  in  the  business 

for  a  while,  437. 
dissolved  by  bankruptcy,  but  afterwards  holding  themselves  out  as  a 

firm,  437. 
jury  may  infer  authority  to  indorse  and  transfer  assets  where  partner 
declares  they  have  been  left  in  hands  of  other  partner  for  purpose  of 
winding  up  the  concern,  437. 
consideration  to  the,  130. 
common  to  two  firms,  maker  and  payee,  153. 
action  against  partnership  or  partnership  acceptance,  153  n. 
common  partner  not  equivalent  to  notice  of  fraud,  153  n. 


INDEX.  739 

Reference  is  to  Sections. 

PARTNERS  AND  PARTNERSHIP— Continued. 

affected  by  war  as  alien  enemies,  251. 

liability  when  infant  partners,  268. 

infants  partners,  action  by  and  against,  278. 

there  can  be  no  delivery  after  dissolution,  221. 

married  women  partners,  279,  2S5. 

See   Acceptance — Action — Aliens  and   Alien    Enemies— Blanks — 
Bona  Fide  Holder — Evidence. 
PARTS, 

first,  second,  &c,  omitted,  liable  to  bona  fide  holder  for  all,  181  n. 

erasure  of,  is  an  alteration,  and  discharges,  182  n. 

foreign  bill  generally  drawn  in,  of  three  or  more,  234,  237. 

inland  bills  generally  drawn  in  a  single  part,  234. 

must  be  expressed,  237. 

all,  equivalent  to  but  one  bill,  237. 

delivery  of  bill,  delivery  of  all,  238. 

transfer  of  bill  carries  all  three,  238,  239. 

an  agreement  to  deliver  a  foreign  bill  requires  the  delivery  of  as  many,  as  may  be 
desired,  238. 

if  bill  is  lost  another  set  may  be  demanded,  238. 

suit  for  delivery  of  other  parts  by  prior  parties,  possession  must  be  proved,  238. 

if  several  accepted  or  indorsed,  liable  on  all,  239,  240. 

though  one  paid  to  a  bona  fide  holder,  239. 

a  bona  fide  holder  may  demand  other  parts  from  subsequent  indorsee.  239. 

presentment  may  be  made  on  any,  240. 

if  one  part  delayed  others  should  be  sent  forward,  240. 

an   averment   that   one   part   was   indorsed    is   sustained  by  proof  of  indorsing 
another,  239. 

acceptance  may  be  on  any,  240. 

though  he  should  accept  only  one,  240. 

on  payment  by  acceptor  the  accepted  part  should  be  surrendered,  240,  241. 

if  such  part  is  lost,  entitled  to  demand  security  before  paying  another,  240. 

any  part  may  be  protested,  241 . 

payment  of  one  part  is  payment  of  the  whole,  241. 

protested  part  should  be  surrendered  on  payment,  241. 

an  agreement  to  surrender  a  part  implies  a  surrender  of  all  the,  241. 

production  at  trial,  241. 

foreign  statutes,  243. 

■See  Foreign  Bills — Inland  Bills. 

PAYABLE, 

equivalent  to  a  promise  to  pay,  90. 
effect  in  certificate  of  deposit,  90. 

"PAYABLE  AND  NEGOTIABLE  AT," 

effect  on  negotiability,  177. 

PAYEE, 

defined,  4. 

joint  payees,  not  partners,  406. 
rights  of  executor  as,  44C. 
guardian  or  trustee  :i~.  HI. 

Suite  ni:iv  l»e  named  :i-.  1  50. 


740  INDEX. 

Reference  is  to  Sections. 

PAYEE'S  NAME, 

must  be  certain,  150. 

bearer  sufficient  for,  150. 

cannot  be  to  a  person  dead,  150. 

may  be  used  in  carrying  on  a  business,  150. 

necessary  to  negotiability,  150  n. 

administrator  may  sue  on  note  payable  to  deceased  person,  150. 

American  statutes,  169. 

English  statutes,  169. 

foreign  statutes,  170. 

Fictitious,  161,  162,  163. 

equivalent  to  bearer,  161. 
party  intended  may  recover,  161. 
"to  order"  equivalent  to  bearer,  161. 
"to  order"  equivalent  to  fictitious,  or  bearer,  174. 
may  be  unintentionally,  the  name  of  a  real  person  is  equivalent  to  a 

fictitious  payee,  161. 
may  be  mistaken  for  the  name  of  a  similar  one,  the  parties  may  recover 

as  on  one  payable  to  a  fictitious  person,  161. 
to  a  non-existing  corporation  equivalent  to  a  fictitious  payee,  161. 
so  a  note  payable  to  a  firm  after  death  of  one  partner,  161. 
real  payee  forged  by  maker  treated  as  fictitious  by  holder,  161. 
fictitious  may  be  indorsed  by  real  payee,  162. 
assumed  named  holder  may  aver  the  one  intended  and  prove  it  by  parol 

evidence,  162. 
holder  knowing  that  it  was  for  accommodation  of  drawer,  cannot  recover 

against  acceptor  with  knowledge,  163. 
note  to  a  fictitious  person  is  equivalent  to  bearer  against  maker  and  all 

persons  with  notice,  by  statute  in  some  States,  163. 
parties  with  knowledge  of  the  fictitious  cbaracter  of  payee's  name  liable 

to  a  bona  fide  holder,  163. 
so  of  fictitious  names  forged  by  the  one  negotiating  the  paper,  163. 
if  the  acceptor  has  knowledge  of  the  fictitious  character  of  the  payee's 

name  he  is  liable  to  a  bona  fide  holder,  164. 
when  estopped  from  setting  up  the  fictitious  character  of  the  payee, 

164. 

need  only  prove  the  signature  and  indorsement  to  have  been  made  by 

the  same  person,  164. 
liable  on  the  common  money  counts,  164. 
circumstantial  evidence  o'f  knowledge  admissible,  164. 
holder  need  not  prove  consideration,  164. 
in  England  a  bill  payable  to  a  fictitious  payee  is  not  equivalent  to  one 

payable  to  bearer  in  a  suit  against  one  not  knowing  of  the  fictitious 

character  of  the  payee,  164. 
acceptor  for  honor  liable  on  such  bill  by  force  of  an  estoppel  though 

without  knowledge,  164. 
maker  without  knowledge  liable  to  bona  fide  holder,  164. 
drawer  without  knowledge  liable  to  a  bona  fid"  holder,  164  n. 


INDEX.  74j 

Reference  is  to  Sections. 
PAYEE'S  NAME— Continued. 
Blank  : 

in  sealed  bond,  74  n.,  168. 

filling  in  sealed  bond,  168. 

non-negotiable  sealed  bond,  168. 

surety  bound  by  filling,  168. 

accommodation  co-maker  bound,  168. 

against  a  bona  fide  holder,  168. 

guarantor's  indorsement  by  a  third  person  not  liable  to  bona  fide  payee 

if  name  filled  other  than  agreed,  168. 
equivalent  to  bearer,  167,  185. 
time  filled,  185. 
filled  after  transfer,  185. 
in  non-negotiable  note,  185  n. 

filled  to  prejudice  of  stranger  indorsed  before  delivery,  185. 
holder  filling  does  not  become  original  party,  185. 
may  be  filled  by  a  bona  fide  holder,  167. 

any  time  before  trial,  167. 
need  not  be  filled  at  all,  167. 

intention  explained  by  contemporaneous  instrument,  167. 
acceptor  only  liable  on  proof  of  authority  to  fill,  167. 
common  to  several  persons,  166. 

father  prima  facie,  not  son  when  the,  is  the  same,  166. 
Misnomer  : 

parol  evidence  admissible  to  correct,  165. 
immaterial  if  no  question  of  identity,  165. 
misspelling,  165. 

person  not  intended  but  named  cannot  transfer,  165. 
change  of  name,  action  in  new  name,  165. 

Alternative  : 

action  by  whom,  155. 
transfer  by  whom,  155. 
alternative  may  be  conditional,  155. 
such  note  not  negotiable,  155. 

Agents : 

taking  from  principal  individually  liable  on  indorsement,  156. 

not  to  a  bona  fide  holder,  156. 
prima  facie  the  beneficial  owner,  156. 
so  wife,  though  loan  to  husband,  156. 

principal  may  sue,  by  parol  evidence,  without  indorsement,  156. 
principal  named,  157. 
"or  his  successor  in  oflk-e,"  157. 
explainable  by  parol  evidence,  157. 
official  character  designated  by  initials,  157  n. 
official  title  only,  no  name,  157. 
"cashier"  is  the  bank,  133,  157. 
though  bank  not  named,  1">7. 
for  principal,  property  nf  principal  tor  agentfa  benefit,  L56  n. 


742  INDEX. 

Reference  is  to  Sections. 

PAYEE'S  NAME—  Continued. 

to  "A.  B.,"  agent,  principal  may  sue,  ]56. 

agent  may  sue,  156. 

though  principal  named  in,  156. 

"A.  B.,  treasurer,"  to  principal,  156  n. 

"A.  B.,  attorney  for  C,"  156. 

"  agent  of  proprietors  of  town  of  C,"  156. 

"  permanent  secretary  of  Adelphi  Lodge,"  156. 

drafts  between  officers  of  corporations,  154. 

complete  without  indorsement  between  acceptor  and  drawer,  154. 
equivalent  to  drawee,  153. 
order  of  acceptor,  153  n. 
equivalent  to  maker,  153. 

and  indorsed  in  blank  equivalent  to  bearer,  153. 
incomplete  until  indorsed,  153. 
without  indorsement,  153. 

indorsed  in  blank  formerly  non-negotiable  in  Kentucky,  153. 
same  payee  maker  and  payee  cannot  sue  co-maker,  153. 
co-payee  can  sue,  153. 

maker  and  payee  partners  with  common  partner,  153. 
note  to,  by  A.  to  "A  or  bearer,"  153  n. 

where  the  identity  of  the  maker  and  payee  is  apparent  only  and  not  real,  154. 
inadvertently  indorsed  on  the  face,  154. 
different  persons  same  name,  154. 
different  persons  prima  facie  the  same,  154. 

where  payable  to  the  order  of  the  maker  does  not  affect  bona  fide  holder,  154. 
where  payable  to  the  order  of  the  drawer  does  not  affect  a  bona  fide  holder,  154. 
may  be  treated  at  the  option  of  the  holder  as  a  promissory  note  or  an  accepted 
bill,  154. 

Designated,  not  named  : 
description,  152. 

"treasurer,"  "secretary,"  &c,  of  A.  B.,  152. 
"  I.  O.  U.,"  152. 
"  steamboat  J.  and  owner,"  152. 
"  treasurer  for  the  time  being,"  152. 
"heirs  of  A.,"  152. 
"  administrators  of  A.,"  152. 
•'estate  of  A.,"  152. 
"  A.  or  B.,  administrator  of  C,"  152. 
"heirs  or  assigns  of  A.,"  152. 
executors  of  A.  B.,  description  only,  158. 

cannot  sue  after  letters  revoked,  158. 
guardian,  158  n. 
public  official,  158. 
"  assignee,"  158. 
•'trustee,''  158  n. 
"sheriff;"  158. 
bearer,  158. 
to  A.  or  B.,  155. 


INDEX.  743 

Reference  is  to  Sections. 

PAYEE'S  NAME—  Continued. 

"A.  or  B.,  administrators  of  C,"  155. 

"A.  B.,  or  heirs,"  155. 

"A.  or  wife,"  equivalent  to  alone,  155. 

trustees  or  their  collector,  155. 

A.,  B.  or  C,  or  a  major  part  of  them,  155. 

"A.,  B.  or  bearer,"  equivalent  to  bearer,  160. 
or  holder,  160. 
in  negotiable  bond,  15^. 
necessary  in  detached  coupon,  150. 

due  bill,  150. 
payee's  name  implied  by  implication,  151. 

order  for  payment  at  the  bottom  of  a  statement  of  account,  151. 
so  an  order  for  payment  indorsed  on  a  promissory  note.  151. 
a  new  promise  written  under  a  note,  151. 
a  note  beginning  with  a  receipt  naming  the  person  from  whom  the  consideration 

proceeds,  151. 
several  persons,  155. 

individual  name  prima  facie  individual,  not  partnership,  155. 
joint  payees  one-half  to  each,  155. 
cannot  be  altered,  155. 

such  note  may  support  a  joint  action,  155  n. 
possession  prima  facie  title,  160. 
blank  or  bearer,  160. 
"A.  B.,  bearer,"  not  negotiable,  160. 
note  to  one  of  two  joint  makers  or  bearer,  160. 
bearer  may  sue  both,  160. 
to  "  the  order  of  the  indorser,"  160. 
order  of  A.  equivalent  to  A.  or  order,  151. 
may  be  sued  by  A.,  151. 

PAYING  TELLEK, 
See  Teller. 

PA.YMENT, 

promise  or  order  for,  necessary,  87. 

what  words  equivalent  to  a  promise,  87,  90. 

what  words  equivalent  to  order,  87. 

money  necessary  to  negotiability,  96. 

must  be  unconditional,  92. 

agreement  for  in  confederate  currency,  102  n. 

lime  of,  must  be  certain,  109. 

foreign  statutes,  109. 

American  statutes,  109. 

-ubsequent  readiness  to  pay  no  defense  to  an  action,  109. 

"when  he  could,"  ratification  by  infant  conditional,  273. 

requires  proof  of  the  promisor's  ability  to  pay,  273. 

expressed  in  memorandum,  192.  I 

■  in  envelope  containing  note,  192  n. 

in  collateral  mortgage,  192  n. 

rejected  :i<  repugnant  to  note,  192. 


744  INDEX. 

Reference  is  to  Sections. 

PA  YMENT—  Continued. 

by  agent  or  bank  authorized  by  "  negotiable  at,"  &c,  177. 

recovery  by  bona  fide  holder  payment  on  bill  drawn  on  alien  enemy,  254. 

to  alien  enemy  cannot  be  questioned  by  him,  255. 

by  note  of  married  woman  not  a  payment,  287. 

tax  not  paid  by  note  to  collector,  158. 

non-negotiable  note  not  prima  facie  a,  128. 

to  bona  fide  holder  on  forged  indorsement,  no  recovery  by  acceptor,  161. 

by  one  secondarily  liable  no  extinguishment,  17. 

stipulation  as  to  manner  of,  204. 

in  what  alternative,  204. 

in  money,  96. 

"  in  current  money,"  96. 

"  in  lawful  current  money,"  96. 

in  "lawful  money,"  96. 

"in  exchange,"  96. 

"  in  good  solvent  cash  notes,"  96. 

"  in  Tennessee  money,"  96. 

"  in  Canada  money,"  96. 

"  in  Brandon  money,"  96. 

"in  New  York  funds,"  96. 

"  in  foreign  bills,"  96. 

"  in  paper  medium,"  96. 

"  in  East  India  bonds,"  96. 

"  in  United  States  bonds,"  96. 

in  bank  stock  or  money,  96. 

"specie,"  97. 

gold,  97. 

United  States  legal  tender,  97. 

"  in  coin,"  98. 

in  gold  dollars,  98. 

English  guineas,  98. 

in  current  funds,  99. 

currency,  99. 

current  bills  or  notes,  100. 

"  bank  notes,"  100. 

in  merchandise,  101. 

in  work,  101. 

"dollar,"  "sterling,"  &c,  102. 

for  other  illustrations,  see  96-102. 

Amount  of,  must  be  certain,  104. 
sufficient  if  ascertainable,  104. 
may  be  in  figures,  105. 
blanks,  105. 
foreign  statutes,  105. 
out  of  particular  fund  destroys  negotiability,  107. 
what  instruments  are  so,  107. 
not  so,  107. 
reference  for  re-imburseraent  only,  108. 


INDEX.  745 

Reference  is  to  Sections. 

PAYMENT—  Gtmtinued. 

to  either  joint-payees  sufficient,  155  n. 

to  A.  "if  she  called  for  it  before  she  died,"  if  not  to  B.,  165. 
recovery  from  wrong  person  of  payee's  name  in  action  for  money  received.  lfiG. 
to  indorsee  of  married  woman  until  implied  authority  of  husband  is  revoked,  288. 
of  infant  with  knowledge  no  defense  to  an  action  on  the  note  by  the 
payee's  guardian,  271. 
infant  payee  no  defense  at  suit  of  a  bona  fide  indorsee,  271. 
of  one  part  of  bill  is  a  payment  of  the  entire  bill,  241. 
recovery  of  payment  of  wrong  part  by  mistake,  241. 
to  wife,  321. 

husband's  note  to  wife,  321. 
after  divorce,  321. 

See  Place  of  Payment — Time  op  Payment. 

PENCIL, 

is  a  sufficient  writing,  60. 

PERFORMANCE  OF  CONDITION, 
effect  on  negotiability,  95. 
must  be  shown,  95. 
what  is  a  question  for  the  jury,  95. 

"PER  PROCURATION," 

is  sufficient  notice  of  agency,  388. 

PLACE,  LAW  OF, 

See  Conflict  of  Laws. 

PLACE  OF  PAYMENT, 

how  determined,  33. 
presumption  from  date,  46,  81. 

acceptor's  domicile,  46. 
should  be  designated,  121. 
not  required  by  common  law,  121. 
required  by  foreign  statute,  121. 

to  be  made  payable  at  a  place  different  from   that 
where  it  is  drawn,  121. 
English  promissory  note  under  £20,  121. 
Bank  of  England  notes,  121. 

not  expressed  prima  facie  place  of  residence  of  the  drawee  or  maker,  122. 
lawful  tender  can  only  be  made  at  such  residence,  122. 
prima  facie  accommodation  paper  if  payable  at  drawer's  residence,  122. 
■drawer  liable  at  place  of  drawing  on  non-acceptance,  122. 
indorser  liable  at  place  of  indorsement,  122. 
acceptor  liable  at  place  of  payment  if  named  in  bill,  122. 
«xcept  when  otherwise  expressed,  122. 
Stats.  1  and  2  Geo.  IV.  c.  78,  122. 
may  be  designated  in  memorada,  123,  126,  193. 
memorandum  not  part  of  bill,  123,  193. 

intention  whether  or  not  a  part  of  the  bill  question  for  the  jury,  123. 
alteration  of  memorandum  material,  123,  193. 
blank  authority  t"  till,  123. 


746  INDEX. 

Reference  is  to  Sections. 

PLACE  OF  PAYMENT— Continued. 
mistake  may  be  corrected,  124. 
agreement  by  parol,  hut  not  expressed,  124. 

parol  evidence  inadmissible  as  to  place  of  payment  when  not  expressed-  124. 
not  prima  facie  date,  124. 
several  places  named,  125. 
"at  any  bank  in  S.,"  125. 
"at  either  bank  in  B.,"  125. 
notice  to  holder  unnecessary,  125. 
pleading  in  such  case,  125. 
bank  named  not  the  agent  for  collection,  1 25. 
authoi-ized  to  pay  note  on  maker's  credit,  125. 
when  presentment  there  is  necessary,  126. 
American  rule  as  to  presentment  and  pleading,  127. 
American  statute,  128. 

if  payable  at  a  bank,  presumption  that  it  is  payable  at  a  bank  in  Indiana,  128- 
blank  left  for  bank,  128. 

order  on  cashier  of  bank  so  named  not  a  bill  of  exchange,  151  n. 
omission  cannot  be  supplied,  182. 
blank  may  be  filled,  186. 

PLEADINGS, 

signature,  67. 

misdescription  of  date,  84. 

averments  of  date,  84. 

must  aver  expressed  time  of  payment,  109,  110. 

on  may  be  averred  to  be  on  or  before,  110. 

must  aver  happening  of  contingent  event,  116. 

must  describe  place  of  payment  when  several  named,  125. 

aver  presentment  at  place  designated,  126. 

American  rule,  127. 
bill  to  order  of  drawer  described  as  note,  154. 
averring  the  bond  payable  to  bearer,  159. 
acceptance  by  one  of  several  drawers,  171. 

indictment  of  forged  bill,  drawer,  drawee  and  payee  alike,  172  n. 
omission  of  "or  order"  immaterial  in,  177. 
common  counts,  a  note  without  "value  received,"  178  n. 
nam:  need  not  aver  "  value  received,"  180. 
such  averment  immaterial  and  need  not  be  proved,  180. 
otherwise  if  intended  as  a  description  of  the  note,  180  n. 
assigned  without  recourse,  180. 
a  plea  averring  their  absence  is  immaterial,  180. 
averment  of  a  special  consideration  should  be  proved,  ISO  n. 
averment  as  to  stamp,  when  necessary,  214. 

delivery  need  not  be  specially  averred,  217. 
"promised"  or  "made,"  sufficiently  implies  delivery,  217. 
narr.  should  aver  that  it  is  a  foreign  bill,  234. 

averment  of  transfer  of  one  part,  indorsement  of  other  part  sufficient  proof,  239: 
larceny,  259. 
drunkenness,  264. 
ratification  by  infant,  manner  of  should  lie  averred,  27'i. 


INDEX.  74/ 

Reference  is  to  Sections. 

I  *  L  E  A 1 1 ING  S—  Continued. 

infancy  admissible  under  general  issue,  278. 

coverture,  to  avoid  note,  must  l>e  specially  pleaded,  287. 

discontinuing  suit  as  to  married  woman,  may  proceed  against  joint-makers,  287. 

separate  benefit  or  for  necessaries  must  be  averred,  287. 

improper  execution  by  corporation,  may  be  taken  advantage  of  under  tbe  plea  of 

genera]  issue,  335. 
so  if  it  has  exceeded  its  power  by  making  an  accommodation  note,  335. 
need  not  be  specially  pleaded,  335. 

Partnership — Fraud  : 

fraud  upon  a  partnership  in  giving  a  bill  or  acceptance  may  be  proved 
under  the  general  issue,  425. 

but  under  such  plea  the  defendant  must  prove  notice  as  well  as  fraud,  425. 

and  when  fraud  is  alleged  an  injunction  will  be  granted  to  restrain  the 
negotiation  of  bill  by  the  holder  for  value,  425. 

who  had  notice  that  the  acceptance  had  been  improperly  given  in  the 
firm  name,  425. 

until  fraud  is  shown  the  authority  of  the  partner  to  make  the  paper  in 
dispute  is  presumed,  425. 

if  shown  to  have  been  made  in  a  business  outside  of  that  of  the  firm, 
fraud  will  be  presumed  against  a  holder  with  notice,  425. 

but  the  purchaser  has  no  grounds  of  suspicion  because  the  note  was  made 
in  one  firm  name  and  indorsed  in  another  by  one  who  is  a  common 
partner  of  both  firms,  425. 

and  such  partner  will  not  be  required  to  prove  the  assent  of  either  firm, 
425. 

and  this  is  so  although  both  signatures  are  in  the  same  handwriting  and 
the  note  is  payable  to  the  partner  who  obtained  the  discount  and  wrote 
the  signatures,  425. 

suspicious  circumstances  are  in  such  case  only  material  as  evidence  of 
bad  faith  on  the  holder's  part,  425. 

and  the  rule  is  the  same  as  to  gross  negligence,  425. 

if  accepted  by  one  partner  in  fraud  of  his  firm  with  blank  for  the  draw- 
ee's name,  425. 

though  where  bill  is  executed  in  blank  by  one  partner  in  firm  name  and 
left  negligently  within  the  control  of  a  clerk,  who  dates  it  back  and 
negotiates  it  in  fraud  of  the  firm,  after  the  death  of  the  partner  draw- 
ing, will  bind  the  surviving  partners,  425. 

when  fraud  is  shown  by  the  firm,  the  onus  is  on  the  holder  to  shew  his 
own  good  faith,  425. 

he  must  also  show  himself  to  be  a  holder  for  value,  425. 

and  especially  so  if  he  has  taken  the  paper  under  suspicious  circum- 
stances, 425. 

PLEASE, 

immaterial  in  a  bill,  87. 

PLEDGE, 

recital  of  pledge  does  nut  afiecl  negotiability,  201. 

an  agent  authorized  to  discount  principal's  paper  cannot  pledge  it  for  his  debt,  36 L 


748  INDEX. 

Reference  is  to  Sections. 

PLE  DGE — Continued. 

an  exception  by  the  usage  of  London  in  favor  of  brokers,  361,  391. 
power  of  cashier  to,  securities  of  his  bank,  370. 
by  one  partner  of  partnership  securities,  418  n. 

POST-DATING, 

effect  of,  79. 
validity,  79. 
checks,  80. 

maturity  reckoned  from  date,  110. 
so  if  no  time  expressed,  119. 

PRECATORY  WORDS, 

effect  of,  87. 

PRESENTMENT  FOR  ACCEPTANCE, 

of  checks,  8. 

if  bill  payable  "  after  sight,"  16. 
See  Acceptance. 

PRESENTMENT  FOR  PAYMENT, 

necessity  for,  17. 

effect  of  laches,  17. 

governed  by  lex  loci  solutionis,  52. 

when  necessary  at  place  of  payment,  123,  126. 

pleading,  126. 
American  rule,  127. 
notice  of  place  unnecessary  though  several  named,  125. 

PRESIDENT, 

added  to  signature,  effect  of,  133. 
of  a  corporation,  powers  of,  368,  369. 

PRESUMPTIONS, 

as  to  law  of  place  contemplated,  23. 

place  from  date,  26. 

of  business  rather  than  residence,  27. 
from  expressing  place  of  payment,  28. 
of  usury  by  lex  fori  inadmissible,  30,  41. 

avoided,  33. 
place  of  payment  from  date,  46,  81,  124. 
domicile  rei  situs,  33. 
address  or  residence  of  acceptor,  33. 

of  indorsement,  33. 

foreign  law,  34,  41. 
from  date  as  to  usury,  44. 

foreign  law  need  not  be  known  to  parties  at  time  of  contract,  51. 
as  to  seal,  73. 

date,  77,  78,  81. 
date  prima  facie  residence  of  maker,  81. 
indorsement,  82. 

bona  fide  holder  not  affected  by  "  given  for  a  patent-right,"  86  n. 
negotiable  not  prima  facie  from  "order"  or  "bearer,"  91  n. 
"dollars."  United  States  currency,  102  n. 


INDEX.  749 

Reference  is  to  Sections. 

PK  ESU  M  PTIONS— Continued. 

matures  on  demand  if  no  time  expressed,  119. 

note  lost,  1 19. 
prima  facie  if  bill  payable  at  residence  of  drawer,  122. 

payable  at  bank  prima  facie  in  State  (Indiana)  if  necessary  to  negotiability,  1:N. 
partnership  name,  130. 
execution  by  public  officer,  132. 
assets  prima  facie  note  by  executor,  134. 
maker  and  payee  same  name  different  person,  154. 
as  to  liability  of  agent  executing,  144  n. 
from  adding  "security"  to  signature,  149  n. 

joint  note  from  joint  debt  equivalent  to  joint  and  several  note,  149. 
note  to  individual  payee  prima  facie  individual  note  partnership  propeiiy,  155. 
consideration  prima  facie  if  to  bearer,  159. 
holder  for  value  rebutted  by  evidence  of  stolen  note,  159. 
possession  by  bearer  prima  facie  title,  160. 
considered  not  prima  facie  in  note  to  fictitious  payee,  161  n. 
lost  bill  or  note  prima  facie  negotiable,  173. 
valid  consideration  for  "  value  received,"  178. 
consideration — commercial  paper,  178. 
between  indorser  and  maker,  178. 
as  to  new  maker  after  delivery,  178. 
as  to  non-negotiable  instruments,  178. 

American  statutes,  178. 
of  bill  in  blank,  181. 

discounted  with  blank  not  prima  facie  against  bona  fide  holder,  187. 
knowledge  prima  facie  ratification  by  infant,  276. 

ratification  by  infant,  276. 

Married  women : 

separate  benefit,  married  woman,  279  n.,  285. 

separate  estate,  280  n. 
separate  estate,  intention  to  bind,  280  n.,  295,  304,  305,  306. 
authorized  by  husband  to  indorse  by  wife,  288,  297. 
intention  of  wife  to  charge  separate  estate,  292. 
married  woman's  note,  307. 
property  purchased,  307. 
credit  to  her  separate  estate,  308. 
separate  benefit,  309,  310. 
note  to  husband  prima  facie  void,  312. 
prima  fade  not  for  separate  benefit,  313. 
note  to  wife  prima  facie  separate  property  in  Alabama,  323. 
regularity  of  a  bond  issued  under  an  old  statute  after  twenty-eight  years,  346. 
stamp  affixed  at  delivery,  211. 

on  lost  bill,  211. 
omission  not  prima  facie  fraud,  212. 
delivery,  from  possession,  217. 
"promised"  or  "made,"  in  pleading,  217. 
maker's  handwriting,  217  n. 
among  papers  of  deceased,  217. 


750  INDEX. 

Reference  is  to  Sections. 

PRESUMPTIONS— Continued. 
at  date,  224. 

before  maturity  if  no  date,  224. 
on  Sunday  if  no  date,  225. 
every  1  > i  1 1  an  inland  bill,  235. 
foreign  date  a  foreign  bill,  235. 
foreign  place  not  prima  facie  a  foreign  bill,  235. 
as  to  alien  enemy,  249. 
.sanity,  259. 

fraud  from  drunkenness,  261. 
drunkard's  contract  for  necessaries,  263  n. 

infant's  note  for  necessaries  prima  facie  evidence  of  their  value,  270. 
bills  and  notes  executed  by  corporations,  as  to  validity,  335. 

by  a  foreign  corporation,  to  be  valid  in  State  where  made,  335. 
possession  of  paper  is  prima  facie  evidence  of  ownership,  391. 
authority  of  agent  of  corporation  presumed,  393. 
of  cashier's  authority,  393. 

not  of  president  and  secretary  when  charter  provides  that  its  affairs  shall  ba 
conducted  by  board  of  directors,  393. 

Partners  and  partnership  : 
partnership  name,  130. 

to  have  been  given  in  partnership  business,  398. 
not  rebutted  by  fact  that  bill  drawn  in  firm  name  was  made  payable  to 

one  partner  and  discounted  by  him,  398. 
partnership  consent  presumed,  399. 
payees  when,  to  be  a  firm,  409. 
indorsers  when,  to  be  guarantors,  409. 
individual  name  of  one  partner,  when  presumed  to  have  been  taken  by 

choice  by  the  partners  for  their  use,  410  n. 
as  to  individual  name,  412. 
of  firm  debt  from  form  of  note,  413. 
consent  of  partners,  415. 

"surety"  added  to  signature  is,  accommodation  paper,  419. 
of  fraud,  425.  • 

executor's  note  is,  of  sufficient  assets  of  estate  in  his  hands,  439. 

PRINCIPAL  AND  AGE3T, 

See  Agents. 

PRINCIPAL  AND  SURETY, 

See  Surety. 

PRINTING, 

sufficient  writing,  60. 
insufficient  signing,  64. 

PROFITS, 

a  promissory  note  for,  equivalent  to  past  profits  out  of  the  same  transaction  and 
negotiable,  203  n. 

PROMISE, 

what  words  imply  a,  87,  90. 


INDEX.  751 

Reference  is  to  Sections. 

PROMISED, 

equivalant  to  a  promise,  87. 
implies  a  delivery,  217. 

PROMISSORY  NOTES, 

defined,  7. 

requisites  to  negotiability,  7. 

form,  7. 

what  parties  necessary,  7. 

may  he  in  form  of  a  bond,  86. 

bill  of  exchange,  86. 
a  mere  acknowledgment  of  indebtedness  is  not,  88. 
a  due  bill  is  not,  88. 

is,  90. 
receivers'  certificates  are  not,  90. 
American  statutes,  88. 
certificate  of  deposit  is,  89. 
receipt  is,  89. 

PROTEST, 

defined,  tj. 

what  it  should  contain,  6. 
forms  of,  6. 

foreign  bills  require,  18,  234. 
any  part  of  a  bill  may  be,  241. 
may  he  on  copy,  241. 
corporation  bonds  do  not  require,  12. 
sufficiency  determined  by  lex  loci  solutionis,  31,  52. 
necessity  for  determined  by  lex  loci  solutionis,  39,  52. 
or  by  law  of  the  place  of  the  indorsement,  39,  52. 

PUBLIC  OFFICERS, 
execution  by,  132,  350. 

acceptance  "  John  B.  Floyd,  Secretary  of  War,"  government  not  liable,  350- 
not  individually  liable,  132,  350. 
authority  of,  350. 

party  dealing  with,  prima  facie  with  the  government,  132. 
who  are  such  officials,  132. 
school  trustees  are,  144  n. 
individually  liable  for  fraud,  132. 
as  payees.  158. 
actions  by,  158,  351. 
against,  351. 
action  by  United  States  government,  158  n. 

transfer  by,  158. 
delivery  to,  without  authority  not  to  the  corporation,  223. 

See  Action — Agents — <  Iovernments. 

PUBLIC  POLICY, 

as  to  capacity  of  married  woman,  21  n. 

gambling,  21  n. 

illegal  consideration.  22. 


752  INDEX. 

Reference  is  to  Sections. 

R. 

RATIFICATION, 

By  infant,  273,  274. 

action  on  latter,  not  on  note,  273. 

part  promise  is  equivalent  to  a,  pro  lunlo,  273. 

joint  note  ratified  by  promise  to  pay  balance,  273. 

ratification  must  be  express,  273. 

it  must  be  absolute,  274. 

a  mere  declaration  of  intention  is  not  sufficient,  273,  274. 

after  action  brought,  273. 

for  illustrations,  see  274. 
retaining  benefit  after  twenty-one,  equivalent  to  a,  274,  275. 
implied  from  acquiescence  long  after  twenty-one,  275. 
promise  to  pay  before  twenty-one  not  equivalent  to,  275. 
need  not  be  in  writing  at  common  law,  276. 

English  and  American  statutes  requiring  it  to  be  in  writing,  276. 
knowledge  of  the  circumstances  and  of  the  party's  existing  freedom 

from  liability  necessary,  276. 
presumption  of  such  knowledge,  276. 

Agents  : 

general  principles  as  applied  to,  374. 
unauthorized  act  of  agent  of  corporation  may  be,  374. 
what  acts  amount  to  a,  375. 
for  illustrations,  see  375. 
by  acquiescence,  376. 
See  Agents. 

Partners  and  Partnership  : 

paper  given  without  authority  may  be,  397. 

such  ratification  may  be  implied,  399. 
.  receiving  proceeds  of  bill  will  amount  to  a,  399. 
or  delay  in  disaffirming  it,  399. 
does  not  amount  to  an  original  authority,  399. 
of  non-negotiable  paper  onus  is  on  indorsee  to  show,  400. 

by  a  confession  of  judgment  by  one  partner  is  a,  410. 

after  dissolution,  429. 
of  contracts  of  municipal  corporations  by  the  legislature,  347. 

RECEIPT, 

when  negotiable,  90. 

by  partner  for  individual  debt,  413  n. 

RECEIVER, 

a  note  signed  or  indorsed  "A.  B.,  receiver,"  individually  liable,  443. 

RECEIVERS'  CERTIFICATES, 
when  negotiable,  90. 

RECITALS, 

in  bonds  of  municipal  corporations,  effect  of,  345. 


INDEX.  753 

Reference  is  to  Sections. 

REDUCTION  TO  POSSESSION, 
by  husband,  what  is,  326. 
indorsement  is,  326. 
pledging  by  husband,  326. 
award  to  husband  of  a  legacy,  326. 
question  for  the  jury,  326. 

absence  of  such  intention  may  be  proved  by  husband's  admissions,  326. 
abolished  in  New  Jersey,  326. 

RE-EXCHANGE, 
defined,  19. 

REGISTRY, 

provision  for,  not  equivalent  to  a  condition,  93. 

RELEASE, 

by  husband  of  note  to  wife,  321. 
of  one  partner  on  firm  note,  402. 

REMEDY, 

governed  by  lex  fori,  53. 

RENEWALS, 

by  married  woman,  original  note  before  coverture,  valid,  285. 

indorsement  on  note  during  coverture  as  surety  for  husband  invalid.  290,  293. 

condition  in  original  does  not  affect,  94. 

after  dissolution  of  partnership,  432. 

an  accommodation  indorsement,  434  n. 
power  to  make  and  indorse  notes  does  not  include  a  power  of,  361. 

RENEWED," 

memoranda  on  note  extending  time,  192. 

RESTRICTIVE— INDORSEMENT, 
See  Indorsement. 

RETURN  WITHOUT  PROTEST, 

does  not  affect  negotiability,  201. 


SAVINGS  BANKS, 
See  Banks. 


s. 


SCHOOL  TRUSTEES, 

are  public  officials  and  not  individually  liable,  144  n. 

SCROLL, 

equivalent  to  a  seal,  72. 
presumption  from,  73. 

SEAL, 

not  a  sufficient  signature,  64. 

how  far  destroys  negotiability,  70,  71,  74. 

in  indorsement  or  guaranty  of  unsealed  and  negotiable  instruments,  70. 

addition  is  a  material  alteration,  70. 

2x 


754  INDEX. 

Reference  is  to  Sections. 

SEAL — Continued. 

by  consent  extends  statute  of  limitations,  70.  \ 

American  statutes,  70,  71,  72. 

civil  law,  71. 

foreign  statutes,  71. 

what  is,  72. 

scroll,  72. 

stamp,  72. 

effect  of  recitals,  72. 

evidence,  73. 

presumption,  73. 

omission  by  mistake  may  be  shown,  73. 

as- evidence  of  corporate  act,  73  n. 

corporation  seal  equivalent  to  signing,  74. 

not  necessary  to  corporate  act,  74. 

adding  to  blank  indorsement  on  note,  182. 

sealed  note,  verbal  authority  to  agent  not  sufficient  to  make,  353. 

corporations  may  contract  without  using  their  corporate,  327,  336. 

may  make  a  bill  or  note  under  its  corporate,  327. 

so  may  a  municipal  corporation,  336. 

SEALED  INSTRUMENTS, 

jurisdiction  in  Federal  Courts,  70. 

joint  action,  70. 

grace,  70. 

blank  indorsement,  70. 

diligence  unnecessary  against  drawer,  70. 

SECRETARY, 

added  to  signature,  133. 

has  no  power  to  bind  company  by  contracts,  371. 

or  give  a  draft  in  its  name,  371. 

SECRETARY  FOR  THE  TIME  BEING, 
insufficient  payee,  152. 

SECURITY, 

after  signature  prima  facie  surety  with  co-maker,  149  n. 
added  to  signature,  87. 

SELL, 

a  power  to  collect  does  not  include  a  power  to  sell,  358. 

authority  to,  does  not  include  a  power  to  bind  by  principal  by  a  guaranty  of  it,  358. 

though  power  to  sell  cotton  by  sample  to  broker  includes  power  to  warrant  it,  358. 

authority  to,  "  for  cash  "  will  not  authorize  an  agent  to  take  a  note,  358. 

to  sell  goods  does  not  imply  power  to  indorse  a  note  received  I'm-  them,  358. 

"SELL  AND  CONVEY," 

implies  a  power  to  indorse  a  bill  by  a  corporation,  330. 

"SELL,  INDORSE  AND  ASSIGN," 

•mthority  to,  does  not  include  a  transfer  of  note  as  collateral  for  the  individual 
note  of  the  agent,  361. 


INDEX.  755 

Reference  is  to  Sections. 

SEPARATE  ESTATE. 
See  Married  Women. 

SETS  OF  BILLS  IN  PARTS, 
Set  Parts,  237-243. 

SET-OFF, 

admissibility  of,  determined  by  what  law,  56. 

waived  by  making  note  "negotiable  at"  certain  bank,  177. 

of  wife  against  note  sued  by  husband,  320. 

iif  husband  against  note  to  wife,  323. 

ante-nuptial  debt  against  note  to  Avife,  323. 

SIGHT, 

bill  payable  "after  sight,"  "at  sight,"  when  matures,  16. 

SIGNATURE, 
necessary,  62. 
American  statutes.  62. 
foreign  statutes,  62,  63. 
initials,  63. 
figures,  63. 
fictitious  name,  63. 
by  mark,  64. 
seal,  64. 
stamp,  64. 
printing,  64. 
position,  65. 

indorsement  by  third  person,  66. 
on  allonge,  66. 

subscription  necessary  by  foreign  statute,  66. 
pleading,  67. 
proof  of,  67,  69. 
admission,  67. 
alteration,  68. 
witness,  87  n. 
security,  87  n. 
bank  notes,  90  n. 

by  corporation  agent,  principal  named,  135. 
exceeding  authority,  135. 

principal  named  only  in  agent's  tille,  136,  137. 
"  as  "  agent,  &c.,  136  a. 
principal  named  in  agent's  signature,  L37. 
indicated  by  corporate  seal.   L38. 
of  date  on  stamp,  138. 

across  face  may  be  indorse!',  guarantor  or  acceptor,  171  n. 
■character  determined  by  parol  evidence,  171  n. 
blank  may  lie  filled,  185. 
not  equivalent  to  a  delivery,  21t'>. 

see  administrator — agents — executors — form — guardians — nakb 
—Partners  and  Partnership— Public  Officers. 


7">6  INDEX. 

Reference  is  to  Sections. 

SOLE  TRADER, 

See  Married  Women. 

STAMPS, 

fresh  stamp  necessary  in  England  after  instrument  corrected,  177. 
hills  void  for  want  of,  governed  hy  the  lex  loci  contractus,  36. 
sufficient  signature,  G4. 
limits  filling  blank  in  England,  187. 

blank  amount,  187. 
foreign  laws  not  enforced,  209. 
English  statutes,  209. 
American  statutes,  209. 
construction,  210. 

application  to  Confederate  States,  210. 
indorsement  did  not  require  a,  210. 
certification  of  check  does  not  require,  210. 
due  bill's  do  not  require,  210. 
note  altered  as  to  date  did  not  require,  210. 
prima  facie  affixed  at  delivery,  211. 
on  lost  note,  211. 
omission  without  fraud,  211,  214. 

snbsequently  affixed,  211. 

by  U.  S.  collector,  211. 
at  trial,  211. 

does  not  affect  a  bona  fide  holder,  211,  211  n. 
cancellation  of,  212. 

by  one  of  several  joint  makers  by  the  initials,  212. 
omission  of  no  defense  for  maker,  212. 
fraud  is  not  presumed  from  the  omission  of  a,  212. 
fraudulent  omission,  212,  214. 

United  States  statutes  avoiding  a  bill  without,  unconstitutional,  213. 
forgery  of  bill  or  note  though  not  stamped,  213. 
necessary  to  its  admissibility  in  evidence,  214. 
pleadings,  214. 
omission,  recovery  on  original  consideration,  215. 

admissible  in  evidence  for  collateral  purposes,  215. 

controlled  by  what  law,  36,  55. 

SOLDIERS, 

incapacity  of  by  foreign  laws,  246. 

STATE, 

may  be  payee,  150. 

See  Governments— Municipal  Corporations. 

STATUTES, 

express  statutory  authority  to  a  corporation  should  be  strictly  construed,  330. 
and  such  authority  should  be  strictly  complied  with,  347,  367. 

STATUTE  OF  FRAUDS, 

"value received"  sufficient  expression  for  guarantor  to  satisfy,  178. 


INDEX.  / 0 , 

Reference  is  to  Sections, 

STATUTE  OF  LIMITATIONS, 

regulated  by  lex  fori,  54. 

effect  of  adding  a  seal,  70. 

how  affected  by  date  of  instrument,  85. 

runs  from  demand  of  bill  or  note,  85  n. 

not  extended  by  indorsement  to  pay  "in  any  time  within  six  years,"  110. 

not  extended  by  a  promise  to  pay  "when  able,"  111. 

note  payable  in  Nevada  or  Colorado,  125. 

note  to  husband  or  wife  indorsed  by  maker  after  death  of  husband,  155  n. 

not  extended  by  contemporaneous  warrant  of  attorney,  199. 

payment  by  wife  as  agent  to  bar  the,  authority  must  be  shown,  318. 

STERLING. 

what,  102. 

STOLEN  INSTRUMENTS, 

no  authority  to  fill  blank,  181. 

though  a  bona  fide  holder,  181. 
defense  at  suit  of  a  bona  fide  holder,  220. 

SUBSCRIBING  WITNESS, 

See  Attestation  by  Witnesses — Wrr.v  ess. 

SUNDAY, 

note  or  bill  made  on,  void,  225. 

presumption  as  to  legality  of  foreign  contract,  34,  41. 

where  time  of  date  may  be  shown,  77  n. 

delivery  cannot  be  shown  on,  as  against  a  bona  fide  holder,  110  n.,  226. 

delivery  on,  void,  225. 

date  prima,  facie  delivery,  225. 

not  conclusive  may  be  shown  to  have  been  delivered  on  another  day,  226. 

SUPRA  PROTEST  OR  FOR  HONOR, 
acceptance  for,  what  is,  4,  5. 

SURETY, 

liability  regulated  by  lex  loci  contractus,  21,  44. 
not  affected  by  principals  change  of  domicile,  21. 
discharged  by  alteration,  187. 

by  altering  date,  84. 
shown  by  parol  evidence  between  co-makers,  149. 
adding  to  signature,  134,  419. 
bound  by  filling  blank  payee,  168. 
equity  will  relieve  by  cancellation  when  delivered  contrary  to  a  known  condition 

229. 
conditional  delivery  defense  at  the  suit  of  a  bona  fide  holder,  230. 
liable  though  principal  not,  283. 
married  woman  cannot  become,  279. 

American  statutes,  279. 

at  common  law,  289. 
in  equity  on  separate  estate,  289. 


758  INDEX. 

Reference  is  to  Sections. 

SURETY—  Continued. 

effect  of  a  joint  note,  "289. 

effect  of  express  charge  on  separate  estate,  289,  303. 
See  Married  Women. 
partner  assuming  to  pay  debts  of  dissolved  firm,  as  to  other  partners,  is  a  surety 
427  n. 

SURVIVORSHIP, 

See  Married  Women. 

T. 

TELLER,  PAYING, 

no  power  to  receive  money  for  bank,  371. 
when,  may  receive  money  for  bank,  371. 

no  authority  to  bird  bank  by  statement  as  to  the  genuineness  of  an  indorsement, 
371. 

TENANTS,  JOINT, 

are  not  partners  so  as  to  bind  one  another  by  commercial  paper,  406 

TENDER, 

must  be  personal  or  at  residence  of  drawee,  122. 

TIME  OF  PAYMENT, 

must  be  certain,  109,  1 10. 

"  on  demand,"  109. 

"at  sight,"  109. 

"on  or  before  certain  day,"  110. 

"  by  a  certain  day,"  1 10. 

left  blank,  110. 

may  be  filled  by  bona  fide  holder,  110. 

omission  of  day,  month,  &c,  110. 

"  when  able,"  "  when  in  funds,"  111. 

onus  on  holder  to  show  the  condition,  111. 

"when  collectible,"  112. 

on  note  of  certain  property,  112. 

"on  death,"  113. 

"on  marriage,"  113. 

on  coming  of  age,  113. 

"in  installments,"  114. 

on  default  in  interest,  114. 

after  notice,  114. 

on  return  of  certificate,  115. 

on  construction  of  a  railroad,  115. 

on  settlement  of  estate,  115. 

on  arrival  of  ship,  115. 

on  result  of  an  election,  116. 

on  legislation,  116. 

ratification  of  peace,  116.  "    ■'  --      - 

on  demand,  117. 

expressions  equivalent  to  demand,  118. 

"when  demanded,"  118. 


INDEX.  759 

Reference  is  to  Sections. 

TIME  OF  PAYMENT— Continued. 
"  when  called  for,"  118. 
"on  request,"  118. 
"  on  being  called,"  118. 
"  at  any  time  called  for,"  118. 
for  other  illustrations,  see  118. 

if  no  time  expressed  note  is  payable  on  demand,  119. 
if  post-dated  is  payable  day  after  date,  119. 
when  in  installments,  119. 

time  for  the  payment  of  interest  is  expressed  but  none  for  principal,  1 19. 
an  agreement  to  pay  "  ten  per  cent,  on  this  bill  until  paid,"  does  not  extend  the 

time  of,  by  implication,  119. 
allowance  of  interest  on  the  payment  of  principal,  119. 
memorandum  on  note,  120. 
contemporaneous  agreement,  120. 
verbal  agreement,  120. 
parol  evidence  cannot  vary,  120. 
blank  filled,  186. 
omission  supplied,  186. 

TITLE, 

prima  facie  possession  by  bearer,  "A.  B.  or  bearer,"  160. 

TO  ACCOUNT, 

equivalent  to  a  promise  to  pay,  87. 

TO  BE  ACCOUNTABLE, 

equivalent  to  a  promise  to  pay,  87. 

To  BE  PAID, 

equivalent  to  a  promise  to  pay,  90. 

TO  CAUSE  TO  BE  PAID, 

equivalent  to  a  promise  to  pay,  87. 

TKANSFEB, 

by  indorsement,  if  to  order,  13. 

by  delivery,  if  to  bearer,  13,  159,  175. 

by  executors  and  administrators,  441. 

sufficiency  of  the,  determined  by  the  law  of  the  place  of  transfer,  35. 

by  husband  to  wife,  prima  facie  illegal  by  foreign  law,  34. 

governed  by  what  law,  48. 

of  sealed  instruments,  70,  71. 

subject  to  equities,  70,  71. 

assignor  or  indorser  is  not  liable  to  his  assignee  or  subsequent  holder,  70,  71. 

in  New  Jersey,  a  sealed  bill  cannot  be  transferred  by  blank  indorsement,  70. 

American  statutes,  71. 

non-negotiable  note  subject  to  defenses,  12S. 

by  alternative  payees,  155. 

by  guardian  of  a  payee,  158  n. 

public  official  payee,  158. 

after  the  expiration  of  bis  office,  158. 


7B0  INDEX. 

Reference  is  to  Sections. 

TRANSFER— Continued. 
detached  coupon,  159. 
if  payable  at  bank  (Indiana),  159. 

when  made  by  bank  and  "issued  to  circulate  as  .^oney"  (Alabama),  loir. 
if  payable  to  A.  B.  or  bearer,  160. 
restrained  by  express  words,  160  n. 

by  delivery,  if  payable  to  fictitious  person  <>r  bearer,  162. 
by  payee  named  but  not  intended,  165,  l<ii>. 
such  indorsement  is  a  forgery,  166. 
carries  face  of  negotiable  paper,  173. 

vests  title  in  government  though  paper  non-negotiable,  174  n. 
bond  to  blank  payee,  "  his  executors,  administrators  and  assigns,"  174  n. 
holder  may  sue,  175. 

"to  order  for  my  use"  destroys  negotiability,  175  n. 
by  indorsement  only,  if  to  A.  or  bearer,  175. 
delivery  with  indorsement  subject  to  equities,  177. 
"not  transferable"  destroys  negotiability,  176  n. 
without  recourse,  consideration  should  be  averred,  180. 
blank  indorsement  sufficient,  though  wrongfully  filled,  188. 
by  agreement  for  delivery  in  pledge  subject  to  defenses,  219. 
carries  all  parts  of  a  bill,  239. 
by  bankrupt,  247. 
incapacity  set  up  by  maker,  257  n. 

married  woman  may  transfer  in  equity  by  husband's  consent,  288. 
by  husband's  note  to  wife,  322. 

assignee  in  bankruptcy,  322. 
husband  and  wife,  Alabama  statute,  322. 
wife  at  common  law,  288,  322. 

sole  trader,  322. 
attachment  against  husband,  322,  323. 

TREASURER, 

acts  of,  bind  the  corporation,  371. 

within  the  scope  of  his  official  duty,  371. 

liable  for  stock  issued  by,  371. 

though  fraudulently  issued,  371. 

of  a  savings  bank  cannot  bind  it  by  an  indorsement  in  its  name,  371. 

acceptance  by  the,  371. 

power  to  indorse  may  be  implied  from  his  acting  as  general  manager,  371. 

TRUSTEES, 

delivery  to,  223. 

added  to  signature,  133,  142,  444. 

notice  of  trust,  158. 

a  note  payable  to  and  indorsed  "A.  B.,  trustee,"  is  not  negotiable,  158,  444. 

its  transfer  is  subject  to  equitable  defenses,  158,  444. 

does  not  affect  negotiability,  174. 

note  signed  "C.  D.  by  her  trustee  A.  B.,"  443. 


INDEX.  761 

Reference  is  to  Sections. 

TK  USTEES—  Continued. 

a  note  made  to  one  as,  of  his  wife,  they  may  make  a  transfer  of  it  without  lic-r 

joining  in  the  transfer,  444. 
as  maker,  443. 
as  payee,  444. 

u. 

ULTRA  VIRES, 

limited  in  its  meaning  to  an  absence  of  power  in  a  special  instance,  334. 

an  indorsement  by  a  corporation  may  be  a  good  transfer  though,  330. 

good  defense  to  municipal  warrants,  337. 

legislature  may  ratify  contracts  of  municipal  corporations  that  are,  347. 

the  unauthorized  act  of  an  agent,  which  is,  cannot  be  ratified  by  a  corporation,  374, 

though  agent  is  not  individually  liable,  378. 

"  USANCE," 
defined,  16. 
not  used  in  English  or  American  bills,  16. 

USURY, 

governed  by  lex  loci  contractus,  44. 

rate  of  interest  of  place  of  payment  may  be  chosen,  20. 

what  is  the  place  of  contract,  22. 

how  affected  by  lex  loci  solutionis,  22,  27,  46. 

lex  loci  rei  silce,  22,  27. 
conflict  between  place  of  date  and  execution,  26.  30. 
how  affected  by  lex  loci  domicilii,  27. 

laws  avoiding  contract,  30. 
adverse  lex  fori  not  applied  by  presumption,  80. 

drawer's  contract  as  affected  by  usury  determined  by  lex  loci  contractus,  32. 
presumption  as  to  foreign  law,  34. 
election  of  place  for  interest,  43. 
presumption  against,  from  date,  44,  46. 
how  affected  by  lex  loci  rei  sites,  45. 

acceptor's  domicile,  46. 
how  affected  by  ante-dating,  79. 

may  be  shown  though  "value  received"  be  expressed,  ISO. 
interest  clause  in  blank,  181  n. 

no  defense  against  a  subsequent  holder  filling  his  name  in  blank  as  payee,  185. 
defense  of,  387,  390. 

V. 
VALIDITY, 

governed  lex  loci  contractus,  22,  40. 

lex  loci  solutionis,  28. 
presumption  of,  as  to  corporation  paper,  335. 

VALUE  RECEIVED, 

once  necessary  to  express,  159. 

at  common  law  immaterial,  178. 

note  without  proof  under  common  counts,  178  n. 

new  maker  after  delivery,  fresh  consideration  must  be  proved,  178  n. 


762  INDEX. 

Reference  is  to  Sections. 

V  A  LUE  RECEIVED—  Continued. 

usually  in  bills  and  notes,  178. 

though  not  necessary,  178. 

refers  to  consideration  moving  from  payee  to  maker,  178. 

by  the  acceptor  from  the  drawer,  178. 

from  the  payee  to  the  drawer,  178. 

from  the  drawer  to  the  acceptor,  178. 

between  indorsee  and  maker,  178. 

imports  a  valid  consideration,  1 78. 

so  in  a  non-negotiable  note,  178,  178  n. 

in  case  of  guaranty,  sufficient  to  satisfy  the  statute  of  frauds,  173 

not  necessarily  a  cash  consideration,  178. 

American  statutes,  178. 

foreign  statutes,  179. 

unnecessary  to  negotiability,  180. 

action  of  debt,  180. 

averments  in  pleadings,  180. 

absence  of,  may  create  suspicion,  178  n. 

want  of  consideration  may  he  shown,  180. 

usury  may  be  shown,  180. 

w. 

WAGER, 

on  election,  when  action  lies,  95. 

WAIVER, 

of  appraisement,  cannot  be  filled  in  blank,  182. 
in  memorandum,  part  of  note,  196. 
of  exemption,  how  affects  negotiability,  207. 
of  protest,  415. 
of  notice  of  protest,  420. 
notice  of  protest  by  lunatic  void,  256  a. 
drunkard,  262  n. 
WAR, 

beginning  and  ending  of  the  civil  war  in  the  United  States,  249 
effect  on  contracts,  249  et  seq. 
acceptance  by  partner  after,  427  n. 
See  Aliens  and  Alien  Enemies. 

WAREHOUSEMAN'S  RECEIPT, 

negotiable,  89. 

WARRANTS, 

when  negotiable,  91. 

municipal  warrants,  337. 

not  negotiable,  337. 

defenses  admissible  against,  389. 

WARRANT  TO  CONFESS  JUDGMENT, 
how  affects  negotiability,  207. 

WE  OR  EITHER  OF  US, 

equivalent  to  a  joint  and  several  note,  87. 


INDEX.  763 

Reference  is  to  Sections. 


WE  PROMISE. 

when  equivalent  to  I  promise,  87. 

indicating  liability  of  corporation,  not  agent,  14:3. 

"WHEN  ABLE," 

time  of  payment  conditional,  111. 
as  affecting  statute  of  limitations,  111. 

"WITHOUT  DEFALCATION  OR  DISCOUNT" 
•when  necessary,  86. 

WITNESS, 

added  to  signature,  87. 
competency  determined  by  lex  fori,  55. 
attestation  by,  68,  69. 

See  Attestation  by  Witnesses 

WRITING. 

necessary,  60. 
printing  sufficient,  60. 
American  statutes,  60. 
foreign  statutes,  60. 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIA 

LOG  ANGELES 


R.    H.    F.    VARiEL 

ATTORNEY  AT  LAW 

LM  AMILM,  «AL. 


